As a practicing lawyer, what concerns me is, first of all, as the provision stands now it comes pretty close to being a tautology. Obviously, in any parliamentary system Parliament is sovereign and fully capable at any one moment of over-riding any other previous enactments. We are not like the Americans who can enshrine a bill of rights and move it up into a kind of platonic heaven and then refer to it for refuge and security. We have to live with the institutions that we are very happy to live with. So it strikes me that if we do not accept it as a tautology, then we are in fact enshrining a rather dangerous precedent that we, as an immigrant group, has experienced in World War I; that the Japanese have experienced in World War II; and as our French Canadian kin have experienced as recently as October 1970; the ease with which a government can, if it [Page 60] feels that an emergency is upon them, exercise their parliamentary society. Our preference would be to see these rights enshrined absolutely; and then there would be, at least, an onus on the part of the government of the day to explain to its electorate why it feels the emergency is present. In other words, this seems to be legitimizing a kind of understood, common usage which, I think, has no place when one is speaking of very fundamental liberties. We are speaking about liberties which are, in a sense, prior to later cultural development. I think Professor Tarnopolsky and some of the other spokesmen expressed their anxiety that this be tacitly accepted as a kind of legitimization of the government, perhaps, being too willing to lean to the opinion of its own day at the time when an apprehended emergency occurs. As I say, we have a bit of historical experience to bear this out.

We are opposed to the present wording of Section 1 of the Canadian Charter of Rights and Freedoms, which: guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. In our view, this clause allows too much leeway in allowing the suspension of the charter: subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. The internment of Ukrainian Canadians during World War I was carried out by a government which apparently felt that it was acting in a manner consistent with the principles generally accepted by Canadian society at that time. This unjust and arbitrary treatment of Canadian citizens was repeated again during World War II in the case of the Japanese Canadians. Even the most fundamental principles of our justice system— the right of habeas corpus and the right to be presumed innocent until proven guilty—were arbitrarily suspended in the internment of Canadians who were allegedly dangerous enemy aliens. It is our view that the limitations clause in Section 1 of the Charter is so broad in its application that it would do nothing to prevent a repetition of this kind of systematic abuse of those fundamental rights which the proposed Constitution is supposed to protect, and we would therefore recommend that Section 1 of the Canadian Charter of Rights and Freedoms be deleted.

Mr. Cooper: If I may answer that, we are, of course, concerned with how this would affect the unborn child. But as we say, we are appearing before you, not as some people would like to suggest, as a single-issue organization; we are a human rights organization concerned with the whole spectrum of human rights. It is important to put the question of abortion in a total human rights context. We are opposed to Section I precisely because it puts all human rights in jeopardy. That is the reason for our objection to that.

Section 2 then begins the real ball game, namely everyone has the following fundamental freedom. The one difficulty we had, as a committee, is with Section 2(b). What do we do with freedom of thought when you have got legislation dealing with have propaganda? How far is it possible to retain such articles as Section 281(1) of the Criminal Code and Section 281(2)? Moreover, you will see we have quoted from Article 20 of the United National Covenant of Civil and Political Rights where propaganda of this kind is regarded as inconsistent with freedom of speech. [Page 87] So we raised the question which seemed to me to be necessary to raise with you, that caution must be exercised, we hope, by the courts in due course, or by you, as draftsmen on how far you are prepared to push the concept of free speech consistent with our experience of hate propaganda. One suggestion we make here-and I do not wish to do anything more than to drop it as a hint, but you may want to have some language that some of the modern constitutions have, which state very starkly and flatly that the advocacy of genocide or group libel is forbidden. But I had the honour to be the chairman of the special committee on hate propaganda in 1965. At that time we came to the flat conclusion that the advocacy of group hatred and genocide was totally inconsistent with the democratic process and no democratic state could tolerate it. Now, whether you want to put that flatly in a constitution is for you to consider; but I think it is for us to bring it to your attention, because it is of importance.

This Committee did not have a parochial view; this Committee does not pretend that the human rights question belongs to any sector of the Canadian people. It belongs to them all. But, peculiarly enough, there are two or three areas where the Jewish interest happens to be special, and in some cases very sensitive. One is the problem of war criminals, and how that relates to certain protections offered by a charter of rights in the criminal law field. Another is the problem of free speech, and how far that affects such things as hate propaganda

We want to make it very clear, first of all, that in principle we support the entrenchment of a bill of rights in the constitution. We want to see the constitution patriated to Canada and we want to see in that constitution an entrenched bill of rights. However, we do have some concerns. We are not altogether happy with all of the bill of rights. in that connection we are, I suppose, in somewhat the same situation as a number of other groups who have appeared before you. For example, we feel that some of the statements are too vague. Having been a part of the preparation of the brief of the Canadian Civil Liberties Association, I can say that I, personally, share some of the concerns that they have in terms of the vagueness of some of the language, and I speak particularly of such words as “fundamental freedoms”, and those kinds of things in which we talk about “natural rights”, et cetera. We would like to see some of these things spelled out. On the question, for example, of freedom of speech, we believe very strongly in freedom of speech, while at the same time, of course, being against censorship. But we would like to see freedom of speech limited only in certain specific ways. In the brief we have indicated, for example, that to a large extent we believe in the doctrine of clear and present danger. We think that freedom of speech should be curtailed where the danger is clear. For example, we have no right to go into a crowded theatre and shout “Fire!” resulting in people being trampled to death as a result of fleeing from a fire which is nonexistent and where there is no danger at all. In a situation like that, obviously, we do not have absolute freedom. But we think this needs to be spelled out a lot more clearly than it is today.

I would like to ask you if you have considered, Ms. Hardy, the notion of freedom of the press as an individual right or collective right? Ms. Hardy: It could be considered both because if you speak of freedom of the press for a newspaper, it includes the whole role of a newspaper in a community as well as the role of an individual reporter or columnist, so that I really feel that there would be no point in having freedom of the press for an individual if you did not have it for the publication for which the individual happened to be working, either perhaps in the electronic media or in the print media. So I would prefer to have it refer to both an individual and collective group. Senator Lapointe: Do you think that editors of papers or radio stations would have to come here also to express their opinion on freedom of the press? Ms. Hardy: We would include them as responsible leaders, presumably in the community, and the value of having responsible leadership is very noticeable now that the Royal Commission on Newspapers is sitting and I think that you have to have the leadership in order to develop followers and principles.

I want to refer you to Section 2 of the resolution which is a Section on fundamental freedoms. It says: Everyone has the following fundamental freedoms: (a) freedom of conscience and religion, (b) freedom of thought, belief, opinion expression, including freedom of the press and other media of information What I want to ask you is, how do you think the word “everyone” would be interpreted as it pertains to everyone has the following freedoms, the freedom of the press, freedom of other media of information. I want to take you back in this country about four of five years when the government across the way introduced legislation, which I supported, concerning Time magazine and Reader’s Digest, to try and Canadianize the magazine industry in this country. I am wondering whether or not if we were to enshrine Section 2 in the constitution as written, Time magazine or Reader’s Digest could have gone to the courts and said: “We have a consitutional right in this country of freedom of expression and freedom of the press and freedom of information, freedom of the media; therefore, the government of Canada [Page 12] and the Parliament of Canada do not have the right to legislate restrictively against our two organizations.” Could it be interpreted in that way? Ms. Crandall: Mr. Nystrom, I think that is the kind of question which an expert should be asked to answer. This is what we are saying now, We have not had an opportunity to look at all sides of these questions to give you any kind of an answer. Again, I am not trying to be difficult. But that is one of the questions which we would like to ask someone who is knowledgeable. Mr. Nystrom: I appreciate the answer. The reason why I ask the question is that the words “everyone” and “citizens of Canada” are used throughout the resolution. I am not a lawyer myself, but it would seem to imply that these could be given a fairly wide interpretation, and I am concerned that we might have in a constitution something that is restrictive where we could not increase Canadian content. Let me ask you the same question again about the electronic media. There is growing concern that we Canadianize radio, television—and the CRTC is concerned about this, about television programs coming in from the United States. There is talk now about a second CBC network in this country. Again, I want to ask you a similar question pertaining to the electronic media. If everybody has the freedom of expression and freedom of the press and other media of information, in your opinion, or perhaps in the opinion of your colleague, do you think we would be able to do this as a Parliament, where the constitution says we are denying a fundamental right to everyone, perhaps NBC, New York, or ABC somewhere in the United States? Ms. Hardy: I think, Mr. Nystrom, that it is very important. I have served abroad for Canada in the Department of External Affairs, in the public affairs field, and I feel that it is very important that we develop a Canadian culture, that we develop an interest in things Canadian and a pride, and I grant that there are very good programs produced by the electronic media of other countries but I think we should be proud of our own heritage and be proud of what we can do. I have just been at a briefing on plans for CBC 2, Tele Deux, and I am very pleased that this is what may be coming along shortly and I would hope that we would not refuse all foreign media offers to assist us in our cultural development, but I think we should certainly give ourselves the chance to be first in the field and to welcome the opportunity and the pride in our own country and in what we can develop ourselves. This is a continuing subject of interest financially as well as culturally, naturally, and I would hope that the media club, which now covers the electronic media representatives as well as the press, would be in the forefront of assisting in developments if possible. Thank you. [Page 13] Mr. Nystrom: I wonder if you could possibly, if you have time to do a written brief to the Committee, to try and seek some advice on those questions, because I agree fully with you that we have to develop a Canadian culture and of course we need some input from other countries around the world because we are part of the global village, we have to have a Canadian identity and it is very important, and I would be very concerned if the way Section 2 is written that perhaps we could be denied through our constitution the right to develop fully the Canadian culture and pehaps you could look at that. I also wanted to ask your interpretation of a couple of other words in Section 2. I wanted to ask you what you think the interpretation in your opinion would be of other media of information. We have singled out here freedom of belief, opinion, expression, including the freedom of the press. I know what the press is, I think, but what would be the interpretation legally, in your opinion, of other media of information, what would that include? Ms. Hardy: I would expect that that would include the electronic journalism. The press is usually referred to as print media. Media is a very broad term that has had to be used because you cannot just refer to the press now because it covers a number of other representatives who inform, through one source or another, and I think the electronic media has an important place now in our culture because communications in this country is an aspect of helping unify the country, I think, by letting us get to know each other, not only through print but through electronic means.

Thank you, Mr. Joint Chairman, for giving the Media Club the opportunity to before this Special Joint Committee. As you will see from our submission, Media Club is concerned with the profession, therefore concern of members is with the proposed entrenchment in a charter of rights and freedoms of a new Canadian constitution, freedom of the press.

Mr. Hawkes: There is another conundrum inside your brief, and in contrast to the testimony we had the other day, They wanted to protect the rights of the fetus, your brief clearly says to us: protect the rights of the woman. There is another group involved in the abortion issue and that is medical personnel. Does your association have a position on their right to refuse to participate in any medical procedure, including the procedure of abortion? Dr. Waters: As far as I know, I am just trying to search my memory now, I think the Canadian Medical Association does have a clause in its Code of Ethics that allows physicians to withhold these services in terms of abortion. I do not think any physician can be expected to perform any act that he finds repugnant, and I am quite sure that, again, I am speaking from memory, that the Canadian Medical Association does respect that. Ms. Pelrine: That clause, however, goes on to say that should the physician, because of personal, moral, religious or ethical beliefs, be unable to perform a particular procedure, he or she is obligated to so inform the patient and to refer the patient to another physician who will perform the procedure. I am certainly prepared to accept that Code of the Canadian Medical Association. Mr. Hawkes: Would the freedom of conscience, which is also contained in this charter, be relevant to that issue? Mr. Kellermann: I think that a doctor might argue that he did not want to perform a particular operation or medical treatment of some kind on the basis of freedom of conscience, but that is fine, I do not think that in any way contradicts the position of CARAL, CARAL’s concern is that there be doctors available for the women who want to choose to have an abortion, and as long as that is guaranteed we are not in any way interested in forcing other doctors to involve themselves in that process. They just do not want other doctors standing in the way of women having that right. Ms. Pelrine: And who indeed would want to submit to any medical procedure performed by an unwilling physician?

In Section 2(b). that section gives the impression that the freedom of the press and the media is an individual right. Well, in fact, as we have already pointed out in our report, the freedom of the press is merely a mode by which the general freedom of expression is exercised, it is not a right of an individual as such.

Now, I put to you that no right is absolute; even the right of free speech is qualified in that perhaps for instance, under the Criminal Code you cannot cause a disturbance in a public place, for example, there are many restrictions to keep our society together without having it turn into anarchy or chaos. I suggest to you, because you are critical of the wording later on in general, that rather than deleted Section l, we might come back with a better worded Section I that meets the requirements of more inspiring wording, and meets the requirements that rights in here are more enshrined and less susceptible to court interpretation. Mr. Paisley: Our concern with Section 1 as written is that it would, in our opinion, completely over-ride the rest of the Charter. Without examining the given Section 1 which is envisaged, it is impossible to say whether our concern would be satisfied or not. We simply take the position that if it remains with the rest of the Charter, it would probably be of no effect at all. Mr. Irwin: Many groups have expressed the view which you are expressing, and some have come back and said that it should be made stronger and not so intrusive. I appreciate the difficulty in not having that here now. Mr. Paisley: May I add to what I have said further. We feel that even if there is no Section I, it does not mean to say that [Page 23] there are going to be unqualified or absolute rights. Experience elsewhere with unqualified rights shows that they are in fact qualified by the courts. There is the statement of the courts in the United States to the effect that the right of freedom of speech does not give a person the right to call “fire!” in a crowded theatre. We believe that if you have the right stated in an unqualified fashion it would be interpreted in a reasonable way by the court. That is the reason why we suggest it is unnecessary to have this sort of introductory limitation clause as proposed.

Senator Austin: Under section 2, where you see Subparagraph (b), reference to freedom of thought, including freedom of the press and other media of information, Minister, is it the intention to in any way enlarge the present rights as they are so indistinctly understood of the press and other media in Canada? Is it, for example, now open to argue as to protection of sources in the hands of journalists and press and electronic media people? [Page 79] Mr. Chrétien: I do not know how the Court will interpret that, but we are dealing here, we are formalizing the guarantee that exists traditionally in this society concerning the freedom of the press and other media. What will be the interpretation of the Court in terms of the sources of information and so on, it would not be for me, I do not know what the Court will decide or if there will be some different circumstances that will have to be analyzed by the Court before rendering a judgment. Senator Austin: Your attempt here was to be neutral? Mr. Chrétien: As tnuch as possible.

Mr. McGrath: I am saying that your charter is meaningless in the light of what is said in Section 1 of Schedule B when you make it subject to the reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Surely that makes everything that follows redundant because a free and democratic society would have within it in a parliamentary system freedom of conscience and religion. Ours does; it operates under the practices and conventions and traditions of the British Parliamentary System. It seems to me that you have fallen into the same trap here as the Canadian Bill of Rights because you are going to exclude all the very commendable rights and freedoms that you have set out in Section 2 of Schedule B. It either means that they apply or they do not apply. What are the reasonable limits as are generally accepted in a free and democratic society.

I want to ask the Minister in particular about clause one of this proposed Charter of Rights and Freedoms because I suggest that in its present wording it is a gaping hole in the Charter which really makes the alleged rights and freedoms which are supposed to be protected completely illusory; and in fact if this section one is permitted in its present form that in many ways we will be in a worse position in this ggttntry than had this particular Charter not been implement- Mr. Minister, first of all with respect to clause one I would like to ask you who would determine what is generally accepted as a limitation on these rights and freedoms, and what test would they apply? Would it be a numerical test? Mr. Chrétien: It will be the court who will decide. The way I understand the courts to operate, the precedents will determine the next move. It will be the court because we are not giving them other tests than these. Mr. Robinson: How will it be determined what is generally accepted? Will that be in terms of numbers, if the majority of Canadians accept particular limitations? Would this be your understanding of that provision? Mr. Chrétien: I do not want to pass judgment for what the court will say but I do think there is some, as I explained earlier, there is some historical situation, trends in society, that they can measure; whether it be in terms of numbers and so on. Of course, we are putting a charter there for one reason, to protect the minorities against the abuses of the majority. We have improved fantastically over the past 50 or 75 years in Canada in terms of tolerance in our society and so on and they will have the test of what is reasonable in their minds in [Page 28] relation to those rights that are there. I do not see them turning back the clock; it will be in terms of progress and in terms of protection.

Mr. Tassé: That is the test that the Court would have to apply and that is the whole purpose of the Charter of Rights. In fact, when you entrench a charter of rights like this one you are saying that Parliament and the legislature will constrain themselves when they legislate.

we have a Charter of Rights but this text is a limit; it is an indication to the court how to interpret the charter in relation to the different legislation because if you do not put those words there it could lead to all sorts of change by the courts that will not give them any limits of interpretation. As said by my Deputy Minister there is some legislation that has been well established in the Canadian society that are recognized, and we have to make sure that the courts do not destroy all the previous work of the evolution of our society. Otherwise we will be in great legal difficulty, so they will have to apply the test of reasonableness in their decisions. I do think the Charter of Rights has its own limits, as you will find out when you are studying it, section by section.

Mr. Roger Tassé (Q.C., Deputy Minister): In effect, Mr. Chairman, that Section 1 is meant to bring forward the concept that these rights that are spelled out in the Charter, [Page 15] those you have mentioned and the others, Mr. McGrath, are not absolute rights. If you just take, for example, the freedom of expression, there are limits to the freedom of expression that already are spelled out in the Criminal Code and that will continue and should continue when a Charter of Rights like this is entrenched. What the Section is meant to do is to bring that concept not only to the legislatures but also to the judges because in effect the judges when they are faced with cases where government action or parliamentary action, legislative action is being tested and being challenged, in effect they have to decide whether limits, restrictions, that may have been imposed, because again these rights are not absolute, are reasonable ones. That is only what Section 1 is intended to do, that in effect the judges, when there are challenges brought before them, wherein effect people would claim that their rights have been unfairly or unreasonably restricted that in coming to a conclusion when they are so challenged that in effect the courts will have to take for granted that there are some limitations that may well be reasonable and legitimate in the kind of society in which we live.

One of the things that concerns me about our deliberation is our tendancy to look to the American experience, both in discussing jurisprudence, and it, concerns me a little because I think we are a unique country and our constitution has got to reflect our unique character. We have the built-in advantage, I think at this stage, as some members opposite have pointed out, of amending to some degree our constitution. We have the advantage of one hundred and some years of history, our own history not the American history, and it seems important to me that somehow we balance in this constitution the problems between individual rights and collective rights, such fundamental freedoms of association and religion.

Professor Magnet: But the jurisprudence in the United States to which you refer arises under a constitutional guarantee to nondiscrimination and also to a constitutional guarantee which prevents the establishment of religion. In this proposed resolution there is no antiestablishment clause, and therefore, it simply reflects the Canadian theory which has been true throughout the history of this country that the basic Confederation pact protects certain denominational reasons. Indeed, you might say establishes, but certainly we would not think an antiestablishment clause would be possible in Canada.

Do you think that in Section 2, taking Section 2(b), freedom of thought, belief, and opinion or Section 2(a) freedom of religion, will that protect parties in hospital who have been pressured into assisting an abortion if this is entrenched? Dr. DeVeber: I would hope not. I really cannot answer your question but I would think it is a genuine concern. Miss Campbell: Perhaps you did not quite understand. I was looking for a clause in the Bill of Rights or in the proposal that would allow persons to refuse to assist, and you may have misinterpreted it. Dr. DeVeber: I think that is an excellent idea. I would be in favour of putting that clause in. Miss Campbell: Particularly if Section 1 over-rode any statute. So you could see that freedom of religion perhaps being, or belief that the . . . Dr. DeVeber: I think belief is more important because there are more and more doctors I know who are against abortion on demand, not on religious grounds, but just because they believe it is wrong. So it would be beliefs of any kind. Mr. Cooper: May I make a comment here? When the present Criminal Code, the present abortion law was going through the Justice and Legal Affairs Committee [Page 42] there was an attempt made to insert a conscience clause. Now, the then Minister of Justice, Mr. John Turner, said that this would not be necessary. He could not conceive of any doctor or nurse being required to take part in an abortion. Experience has shown since then that he was dead wrong.

Mr. Black: It seems to me that the value of including freedom of conscience as well as freedom of religion is that it makes clear that people can have very deeply held beliefs that they might not call religious beliefs, but which are equally fundamental to them, and using the phrase “freedom of conscience” it gives them rights as well as people who deeply hold religious beliefs. It seems to me that the possibility that the Supreme Court of Canada or any other court would interpret that in a way which would hinder law enforcement is nonexistent. I cannot imagine the court giving it any such interpretation.

You have referred, as other witnesses have, to Section I, which has been pointed out would permit the proclamation of the War Measures Act in the same terms as in 1970, and will permit the internment of Canadians of Japanese origin and the confiscation of their property. Would it be fair to say you would agree with the suggestion of the Canadian Civil Liberties Association that if Section 1 is not rewritten and perhaps if there is not a remedies section—I believe those are the two sections you have pointed out as having perhaps the gratest weaknesses in the proposed charter—and indeed, we would perhaps be better off not giving the Canadian people the illusion that they have certain rights, but rather that we would be better off without this Charter, if those sections are not in fact amended? Mr. Black: The other way in which, perhaps, you could put it, is that if we do not amend the section, Section 1, we would not have an entrenched charter, even if we were to enact this document. Section 1 imposes such severe limitations on the whole concept of an entrenched charter of rights that it has to be removed to give any effective force to entrenchment.

Now, it is obvious there can be circumstances in which the rights listed in the Charter would have to give way. In times of serious crisis threatening the existence of the nation, such as invasion, insurrection, large scale natural disaster, a temporary emergency limitation on our fundamental rights might be necessary. This is obvious. In fact, it is so obvious and so widely agreed, that, given the difficulties in drafting an acceptable limitation clause, it might well be wiser to leave one out. We cannot now foresee all the situations that might justify temporary emergency limitations. It might therefore be best to let the courts decide in particular cases when the facts of an emergency are known. However, if there is to be a limitation clause, it must indicate clearly that most contingencies that face the nation are to be dealt with by ordinary means which respect the rights guaranteed in the Charter. It must indicate clearly that limitations are justified only in times of “public emergency which threatens the life of the nation”, and then only “to the extent strictly required by the exigencies of the situation”. Here we use the language of the international Covenant on Civil and Political Rights, Article 4, Section 1, to which Canada is a signatory. We recommend this language to you for your consideration. Further, if there is to be a limitation clause, it must clearly indicate that limitations on the Charter justified by public emergency are temporary. We would argue for the inclusion in a general limitation clause of four subsections, the first requiring prompt Parliamentary authorization of the invocation of special powers under emergency legislation, such as the War Measures Act. Second, requiring regular renewal of this authorization if the powers are not to lapse; Third, allowing a small number of members of either House to force review of the authorization; And fourth, allowing any innocent person damaged under the special powers to seek compensation in a special tribunal.

Section 1 of the proposed Charter has come under strong attack and quite deservedly so. At a previous hearing, someone called it the Mack Truck Section. We call it the bathtub section because it makes it much too easy for our leaders and lawmakers to pull the plug on human rights and freedoms and if it is included in the Charter the Charter itself will be worth very little. Section 1 at present says: . . . the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democractic society with a Parliamentary system of government. It will be hard to think of any statement more dangerously vague than this. What is meant by reasonable limits and how is this decided and which democractic society and Parliamentary system are we talking about. Such language opens the door to entrenched present injustices merely because they are widely accepted in supposedly free and democratic societies, and moreover ties Canadian law to the laws and customs of other countries over which Canadians have no control; and to me this is most ironic. We are talking about patriating our constitution and while we are doing this we are proposing to be tied to precedents, set in other countries. it is hard to see what this has to do with producing a Canadian constitution or a Canadian Charter.

Our next item deals with Section I which we call the Mack Truck clause because a person could drive one right through it. We do not intend to dwell at length on this section which creates such loopholes in the legislation. Suffice it to say that we join with the continents of the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Civil Liberties Association and other groups in condemning Section 1. I would just like to summarize a few of our objections. There are two main points. First, Section I applies at all times, it is not limited to emergency situations. Secondly, the standards of reasonable limits that are generally accepted in a democratic society appears to us to allow virtually any legislation passed by a majority in Parliament or a legislature. Apart from concerns regarding the basic rights and freedoms which we share with other groups, we are concerned that this clause may have the effect of completely negating the protection provided by Section 15 on equality of rights.

Mr. McGrath: Then how do we avoid getting into the kind of situation which has developed in the United States where, for example, in certain instances, the Lord’s Prayer recited in the classroom has been ruled by the courts to be unconstitutional? I say that as one who comes from a province which has, by law, a denominational system of education which is publicly funded. That law is enshrined in the constitution of Canada by virtue of the terms of union between Newfoundland and [Page 10] Canada, and indeed, is threatened by the provisions of the bill now before us. You have referred to that, though not in a specific way, and I will come back to that later on. Mr. Hammel: But what is the question? Mr. McGrath: The question is: if we are to entrench a Charter of Human Rights in the constitution, how do we avoid the situation whereby the courts of this country will, in fact, be almost in a position of a parallel legislature in terms of defining new laws by the constitution; for example. you could be restricted as to your hiring practices; as to your conduct in the classroom. I have cited the instance in the United States where the recitation of the Lord’s Prayer has, in certain circumstances, been declared unconstitutional. That is a dilemma I find myself in I am very much in favour of fundamental human rights being protected by law, but I have this dilemma. Mr. Hammel: I think whatever approach is taken, whether the statute approach or the Charter of Rights and Freedoms one, I think we simply have to recognize that there are individual rights, and then there are, in our case, organized group rights. In this case, we are dealing with denominational group rights, although, for example, as a Roman Catholic I do not in any way tend to judge anyone’s right to freedom of conscience, I do feel that when he does not abide by what the Roman Catholic religion teaches, then he is no longer a Roman Catholic, and, therefore, does not have the rights of the group. So I think we have to approach it from that particular point of view, that there are certain group rights which are at least equal to, or, perhaps, supreme over some individual rights. I do not think we can simply make it sound as if the individual rights are total.

Mr. Nystrom: My second and last question, Mr. Chairman, concerns another area where l have admired your organization- the whole question of the conscientious objector. You mentioned this morning, if I heard you correctly, two possibilities: one. enshrining in our constitution that no one should be compelled to take human life against one’s conscience, and you also referred to another option, which is in Federal Republic of Germany, that basically you enshrine that it pertains only to military service. I gather that you prefer the first option, which is more sweeping, that one of you mentioned earlier, the possibility of problems concerning policemen in their work, and firefighters in their work, and getting into the whole abortion controversy and euthanasia and so on. You did mention, I believe, two options: that no one should be compelled to take human life against one’s conscience, and the other option being what is enshrined in the German Republic which, I gather, says the same thing but as it pertains only to military service. Mr. Janzen: We would prefer the more general one in regard to taking human life. Mr. Nystrom: If the Committee or the government in its wisdom did not want to be as sweeping, the second would also cover a very important point, would it not? Mr. Janzen: We would be grateful for what there is.

Mr. Epp: Could I ask you, in page 5, taking your position a little further, you argue that the same rights should be extended to persons working in hospitals, people in the medical field. specifically people who because of conscience cannot accept the taking of life through abortion. Do you feel that the clause that you propose would in fact given them that protection they seek? Mr. Janzen: We are not sure about that. As it stands here we say it might have some implications for that concern, and I think it would suggest something in that direction but we are not sure of that and we have not sought a specific legal opinion. It is a concern to us that we recognize that that is not something on which we have complete clarity. Mr. Epp: Do you have practical demonstration of members of your organization. adherents to your organization of churches that form your constituency. that people have been put into that position, namely of performing medical acts which contravene their conscience and specifically their position that they do not have the right to take life in that form? Mr. Janzen: l do not know of specific personnel from our community. I do know that in the 1977 Badgley report there is [Page 51] some rather strong testimony from doctors and so on who werer subject to considerable pressure and that is the reference for it here.

A conscientious objector clause in the Charter might have implications for areas other than military service. People in police work or in medical work sometimes have to face the question of taking human life, too. The areas of euthanasia and abortion are examples but because of technological and other changes the number of areas may increase. In 1969, when the abortion issue was debated in Parliament, along with other amendments to the Criminal Code, it was emphasized that medical personnel would not be forced to be involved with them. Because of this, a conscientious objector clause, which was considered at the time. was viewed as unnecessary, However, the government’s Badgley study of 1977 found that some strong pressures are brought to bear on medical workers. [Page 48] We believe the right to abstain from the taking of human life should be extended in the area of abortion as well.

Mr. W. Janzen (Director General, Ottawa Office, Mennonite Central Committee, Canada): Thank you. This concern is somewhat different than the one which Mr. Nigh has explained. lf that one could be covered with a clause like, “No one shall be compelled against his conscience to take human life,” then the second one might be covered with a simple affirmation of freedom for religion without specifying that it be for individuals or for groups, thus leaving that question to be decided when problems in relation to that arise. As it is worded at the present time in the proposal, it is cast in explicitly individual terms and we are concerned that that might create difficulties which perhaps are not foreseen at the present time or even considered desirable. The written brief refers to several such difficulties and l will not go over that material, but l would say that these difficulties can arise also in relation to communities other than the Amish or Old Order Mennonites or Hutterites which are referred to in the brief. We know that for generations and centuries the phenomenon of people going off unto themselves for religious reasons to live a bit more as a community unto themselves is an experience that has been present in our civilization and probably will be present. and we would like to have that freedom respected. We are a bit concerned that by casting the provision for freedom of religion in individual terms there might be seine difficulties, as explained in the brief. We could go on and talk further about community rights and collective rights and some aspects that relate to the concerns of the native people as well, but I do not think at this point we would want to go into that. I would point out, however, that in a number of other constitutions or bills of rights the provision for freedom of religion is not as individual as it is in the one that is being proposed. I refer to the I960 Canadian Bill of Rights and there is a simple affirmation of freedom for religion without specifying the way it shall apply. The one to which Mr. Nigh has referred also is general on that point. The American constitution, although generally an individualistic document. is general on that point. It does not specify that it is exclusively for individuals and so on. So what we are asking basically is two clauses: one is a clause that would say something to the effect that no one shall be compelled against his conscience to take human life, and the other one would be at simple affirmation of freedom for religion without specifying that it be for individuals or communities, thus leaving that to the wisdom of the legislatures or the courts to deal with those problems as they might arise.

Our spiritual forefathers where the anabaptists of western Europe. Over 400 years ago they felt compelled to take a stand against the taking of human life in any form and to many of them it was contrary to their understanding of the teaching of scripture. For their beliefs and practice they suffered cruelly; many died. When our forefathers came to Canada around 200 years ago they appealed for and were promised exemption from military duty. The history of these negotiations which are very much abbreviated are contained in paragraphs on pages 3 and 4 of the brief which you have had in your hands. In World War I, the severe test of these provisions came. In the spring of I918 the German forces made one last gigantic assault on the Western Front and for a while it looked as if the Allied front would break. It was under the stress and desperation of that time that exemptions which had been written through Order in Council by government were cancelled and the young men of our churches had their faith and their convictions severely tested; many served periods in jail. I had hoped to bring along today a very close friend of mine who was my bishop for many years. Mr. B. J. Swalm who is 84 years of age. but he had other commitments and was not able to come. He could articulate his experiences during this war. One thing I remember, while he served as my bishop in the Niagara Area was that when he was visiting our area he would ask me to drive past St. Catharines Jail where he spent several months during World War I. Bishop Swalm was one of the founders of this organization, the Mennonite Central Committee. The experience in World War II was different and here I can speak from personal experience. because I was of draft age at that time and young men of my age were being called into service. My spiritual training and upbringing, church teachings, taught me participation in war was wrong but I had to make a decision at that time that I had to know what I believed personally and I had to make a personal decision. I went through weeks of study and soul-searching which reinforced my teaching and brought me to the decision that I could not take a human life. or be part of a life-taking organization. Now, in the Second World War, because of early representation to government by the leaders of our churches, an alternative service program was developed whereby our young [Page 47] men could serve in non-military forms of service such as reforestation, road-building, fire-fighting, agricultural work and some in ambulance and hospital work on the front lines. As l came through those years and in perspective I have two strong feelings. First of all I have a deep respect for the boys, for the integrity of the boys who were my friends and are still my friends. who did not feel as I and went into military service. and we today wish to acknowledge our deep respect for those who disagree with us in this area. The second was a great appreciation which I also hold today for a country where conscience is recognized and where opportunity was given for alternative forms of service of national value, and service that was helpful to society. I an thankful for a country where the right to be different is recognized: where a minority view does not endanger or dehumanize. So it is for this reason that we feel now in the formulation of a constitution in peaceful times apart from emotional pressures of a wartime society, that we include a clause in the constitution that would recognize the right of conscience that would lead one to abstain from the taking of human life. We are making this presentation today from our own experience and perspective as stated in the brief. which is prepared by Mr. Janzen and which I have briefly summarized. We believe in light of past experience and differences of interpretation and application of past government decisions that a clear and brief. concise statement in the constitution would be helpful and we urge the inclusion of such in the Canadian Charter of Rights and Freedoms. I might just call your attention to the statement that is written in the constitution of the Federal Republic of Germany; “No one may be compelled against his conscience to render war service involving the use of arms.”

Mr. McGrath: My question is, does Section 2 of the Charter in any way threaten the tax exempt privileges that you now enjoy as a church, in terms of any question that could be placed before the courts; because freedom of religion means freedom not be exposed to religion in certain circumstances, in other words, no religion in terms of interpretation can be construed as a religion, for the purposes of this section. Mr. Smith: Mr. Chairman, it had not occurred to us that this section would in any way threaten our tax exempt status, at least it had not occurred to me, and I do not see any inherent meaning in this. I think along with other sections of the Charter that the possibility for amendment could indeed threaten any of these sections and thereby affect the question before us.

The Church of Jesus Christ of Latter Day Saints or the “Mormon Church’, is a Christian organization with roots in Canada which go back to the early 1830s. There are at present approximately 85,000 members of the Church in Canada, with congregations in every province and the territories. We deeply appreciate the opportunity to appear before this Committee and to comment on some aspects of the proposed resolution respecting the constitution. At the onset, we wish to make it clear that as a church we take no position on the purely political aspects of the proposed resolution; our members are totally free to think and act according to their own individual wishes on those matters. Believing as we do that churches have a responsibility to provide and safeguard a moral framework in which their members can exercise their beliefs, we wish, however, to address some of the possible moral implications of the resolution. Our basic concerns relate to the potential impact of certain proposals within the resolution on the sanctity and strength of the family, on protection provided by society to women and children, on the relationships between courts and legislatures in making legal policy, and on the inviolability of fundamental freedoms. We can perhaps best illustrate these concerns by examining specific sections of the proposed resolution. In doing so, we wish only to point out concerns, not obvious and totally identifiable dangers. Indeed, it is in the vagueness of the wording of certain portions of the proposed resolution that the [Page 8] greatest dangers lie, because it is impossible to tell exactly what is meant or what was contemplated by the draftsmen. Section 2 of the proposed resolution deals with fundamental freedoms. We applaud the apparent intention of the proposals, believing as we do that “no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property and the protection of life”. Yet we must admit to an uneasiness about the extent to which the proposed resolution actually safeguards the essential freedom it so laudably espouses. Part V of the proposed resolution provides provedures for amending the constitution, either as a result of legislative resolutions or by referendum. These amending procedures apparently do not ensure that legislative action cannot sweep away those fundamental freedoms outlined in Section 2. We strongly believe that freedom of conscience, religion, thought, belief, opinion, expression, assembly and association must be very carefully safeguarded; subject only to the reasonable restraints commensurate with a democratic society, they must not be subject to the vagaries, no matter how well intentioned, of legislatures. Past history, our own and others, has taught us the need to place them above legislative action. Unless they are safeguarded, it would be possible, at some time in the future, for legislatures to deny them to one group or another in our society. The procedures for amending the constitution must, we submit, pay particular attention to the absolute need to protect those fundamental freedoms mentioned in Section 2 of the proposed resolution.

Section I, which preserves the existing constitutional tradition, must be deleted to fully entrench the Charter. Its meaningless vagueness opens the door to the very abuse to the supremacy of Parliament which the Charter is intended to check. Moreover, special provisions are necessary to instruct judges in the Charter’s interpretation. By deleting Section I of the Charter, there will be removed an obvious peg for argument designed to thwart the Charter’s purposes.

I would invite anyone to define what religion means in a comprehensive manner. I think that that term, while we know that certain religions, Judaism, Christianity, Buddhism are religions, there will be many borderline cases where we do not know if those groups are religions or not. But that has not precluded the drafters of this Charter form including religion.

Section I should not govern either Section 14 or Section 15. It is our view that there should be no circumstances where the right to an interpreter, which a deaf, blind or just a deaf person may require in court, should ever be taken away. Why is it either in war or emergency that a deaf-blind person on trial should be denied an interpreter to know what the case is against them. It is too basic and a denial of natural justice. Moreover when should unwarranted discrimination be permitted? At wartime? At peacetime? In the case of an emergency? It is hard to imagine a situation where it is justifiable, and therefore we have recommended, as have other groups, that Section 14 and Section 15 be absolute rights, rights not subject to Section 1. Alternatively, if that point of view is not acceptable to the Committee, it is our submission that the wording in Section I is far, far too broad. You have heard all the arguments before, we can only reiterate them, that Section 1—labelled by some as the Mack truck provision—will in fact make the rest of the Charter of Rights a virtually worthless and impotent means of protecting civil liberties, In particular, the generally accepted view of the public with respect to handicapped persons is that they are often not capable of taking care of themselves, not capable of maintaining a job, not capable of self-sufficiency, and therefore the kinds of laws that I have discussed previously that are discriminatory would be under Section I generally accepted in a free and democratic society, passed by these kinds of Parliaments. And accordingly, if Section 1 remains, and if Section 15 is still subject to it, it is our view that Section 1 must be very narrowly constrained to protect minority rights and in particular, handicapped rights.

Mr. Minister, in view of the many representations by distinguished groups, Civil Liberties Association, Mr. Tarnopolsky, Mr. Fairweather and others, in view of their representation, what I found at least to be persuasive representations, that there were certain rights which should never be derogated from, who in fact did you listen to in arriving at your proposed Clause I, which witnesses did you listen to, which witnesses made a recommendation in line with your proposed Clause I that there should be no derogable rights? Mr. Kaplan: Well, I think the government was influenced even by the witnesses with which it disagreed, and we have tried to reflect in the version the cutting edge that we want in the Charter of Rights, a Charter of Rights and Freedoms that will make a real difference to the Canadian people, and I would not want to indicate that any of the witnesses were ignored because that is not the case. Mr. Robinson: Well, there were certainly a few that were not listened to. Thank you.

I wonder, though, why it was thought that the appropriate location for a limitations clause was right at the very beginning of the proposed Charter of Fundamental Rights and Freedoms, and whether you would be prepared to look at the possibility of moving the limitations clause in whatever form we may finally end up with—and naturally, there may be complications, because if there is a preamble in it it would be inappropriate to do this; but if there is no preamble, on the proposed Clause 1, moving the limitations clause to the end of the proposed Charter? In other words, I believe it would be important symbolically, if nothing else, to start out with the list of fundamental freedoms, the mobility rights and a positive statement of what the rights are, and then at the conclusion of the proposed Charter to indicate what limitations might exist on those [Page 26] rights, rather than starting out with limitations and then a statement of rights. Mr. Kaplan: Well, before directly answering the question, I would like to understand that you are suggesting that the difference is symbolic, and that it does not make any real difference. Mr. Robinson: Certainly, I would not argue that there was any difference in substance in the way this will be interpreted, and I am sure your advisers could confirm that. Mr. Kaplan: I do not think there any real difference either. I think it is purely a matter of style. Our view of the matter was that it was more realistic and useful to the reader to see at once that the rights were not absolute, but that they were constrained. That would be made immediately clear to a person consulting the statute without having to read the first 30 sections to find that what was contained in the proposed Clause 1 was 0really not the whole story. It seems to be more honest. Mr. Robinson: Mr. Minister, if it is agreed that there is no difference in substance—and we are talking about a document, a Charter of Rights which, hopefully, would be widely distributed to school children, to Canadians right across the country, and I would suggest there is a certain symbolic value in setting out those rights and then at the conclusion of those rights indicating what the limitations, if any, may exist in respect of them, as is done in the Diefenbaker Bill of Rights, where the rights were enumerated and at the conclusion of the Bill of Rights, there are references, for example to the War Measures Act and to other limiting provisions.

Mr. Roger Tassé, (Q.C., Deputy Minister, Department of Justice): I think that is an important question you have raised, Mr. Fraser. In effect when you look at the meaning of law, it may mean a number of things and in this context it could mean an Act of Parliament, for example, and we did not want it to be restricted to an Act of Parliament for some of the reasons that have been expressed, and also for another reason that has not been mentioned so far, and that is in effect we wanted also to cover rules of the common law. For example, in the area of libel, defamation. And in many provinces this has not been clarified. There are rules that have just been expressed over time by the courts and we did not want to upset all of this legislation so that is why in effect in French we have used an expression that would embody as well rules of common law that have been established by courts and it could be in the civil law field or in the common law, most probably in the common law, but also would include the statute and include a regulation enacted under an appropriately passed or enacted legislation. Mr. Fraser: So what you are saying, then, is that … Mr. Tassé: Perhaps if I may just expand on what I have just said. For example, if you look at the freedom of expression, the law of defamation, the law of libel imposes some limits on that so we wanted these to continue to have application and we think that they would fit in effect the tests that are set out in Section 1. Mr. Fraser: Well, then, by the same token, so does the law of master and servant, the law of contract and the law of partnership, and a number of other common law notions. [Page 50] Could you foresee a situation where, on the basis of the rights set out in here, you could have a conflict between what are considered laws which stem from the body of case law that has come down over the centuries which could be in conflict with the right that has been set out in the Charter? Mr. Tassé: Well, Mr. Fraser, we do not see these rights or these prescriptions of the Charter to have application in terms of a relationship between individuals. We see them as applying in terms of a relationship between the state and individuals, so I am not sure that in terms of contract laws, unless we were looking at the situation where in fact we are talking of contracts passed between the state, the government, and that might offend a constitutional limitation on some of these rights, then the Charter might be called upon for assistance but if we are just looking at in effect relationships, contractural relationships between individuals, I do not see how the Charter itself could be called upon to assist in resolution of conflicts that may arise. Mr. Fraser: Well, I do not want to take this too far into the realm of theory but individual contracts are constantly formed as a result of discrimination between certain options and certain individuals, and that has always been, within some limitations, an accepted freedom to enter into contract unless there is a specific piece of legislation which forbids it. You can take, for instance, the codes in some of the provinces which now constrain absolute freedom of contract in hiring policies. But I take it that what you are saying is that in the English version when you say “prescribed by law”, that is not just statute law, but is also the common law? Mr. Tassé: Yes. Mr. Fraser: As decided by the cases? Mr. Tassé: Yes. Mr. Fraser: But they could still be challenged if somebody could take the issue to a court and say that that law can no longer be demonstrably justified in a free and democratic society? Mr. Tassé: That is correct. Mr. Fraser: Thank you.

what effect does this have on the law contained in the common law and has this been considered? Specifically, and to make it easy, a contract, contracts in their very nature are discriminatory, and I am wondering if this problem has been addressed?

Senator Connolly: Just on that last point, I wonder whether this should not be said, that if Parliament is discussing a piece of legislation which authorizes the making of regulations, it flows from the passing of that piece of legislation that the regulations must be within the four corners of the act, and I suppose the theory is that if Parliament is afraid that something is going to be done under the authority to make regulations which go beyond the act, then I suppose it is up to the parliamentarian at that time to make his objection. Now, you do say, and you did say, if a regulation violates the mother act under which it is made there is recourse to the courts. Your objection to that, I take it, is that it takes too much time and expense and everything else, and I think that is the risk we run in connection with giving the executive a regulation making authority. Mr. Chrétien: And there is too, I would like to say there is, under statutory act procedures there is a revision of all the Orders in Council by Committees of the House and you remember that, but I do think that the principles are the same. We are giving the Canadians some rights and the limits are mentioned in Section I and the courts can intervene and if the rights of the citizens have not been respected in the piece of legislation or any regulation, they are illegal and the court will decide that they do not meet the test that they can be demonstrably justified in a free and democratic society.

The second part of my question, Mr. Chairman, relates to the use of te word law in Section 1. Any limitations must be as the section states prescribed “by law”. My reading of that, and I hope I am wrong, but my reading of that is a regulation of the government could limit in fact any of the rights or freedoms which are contained this proposed Charter. I believe that the word law indeed does include a regulation as it has been defined in Canadian jurisprudence and, Mr. Minister I would hope … Mr. Chrétien: When you talk about regulations … Mr. Robinson: If I can just conclude my question, Mr. Minister, my understanding is that that is the way the law is interpreted, if that is the case then what this is saying is the government, the Cabinet can take away any of these rights, although there is still the recourse to the courts, and I would hope that you would be prepared to look seriously at an amendment which would make it very clear that it is only legislatures or Parliament which could abrogate these very fundamental rights of Canadian citizens? Mr. Chrétien: Yes, but the regution that when we vote any laws in Parliament we always make provisions for regulations, and the regulations that flow from law are part of the law that has been passed, a delegation of authority to the executive to proclaim some regulation that will make possible the law that we pass the enforced, and I think that everything is part of the same law and it will be impossible to—I can look at your suggestion but the principles are the same and if any regulation passed by any government in relation to regulation based on the law, this same test will apply, and the citizens will have the same recourse and I do not see the point unless there are some regulations that could be made outside of the law, but there is not. When you pass an Order in Council, we always have to base our decision on some legal, we need a legal base. Mr. Robinson: There is no debate in Parliament. Mr. Chrétien: But there is a debate in Parliament to authorize the executive branch of the government to do this and do that, otherwise if we are not autorized by Parliament we cannot do that. Perhaps, I do not know, there might be some exception to that rule. Do you know any? Mr. Strayer: No. Mr. Chrétien: I do not. Because if we act without any authority from any law, our action is illegal. So I am not preoccupied with the problem you are raising. [Page 48] Of course, you can always argue in the House we should never give any delegated authority to any Order in Council. Mr. Robinson: No, no. Mr. Chrétien: No, but y could, and say everything has to be approved by Parliament on a daily basis. We could but it would be a hell of a mess. Mr. Robinson: Mr. Minister, I am saying that where there are to be abrogations, that Parliament should discuss that at least.

Mr. Minister, Section I as it stands now modifies everything that is contained in the Charter, and I appreciate that there can be difficulties in defining which particular rights should never be abrogated. Would you be prepared to look as a minimum at least at excluding those rights which are contained in the Covenant’? If you look at the Covenant I am sure you would agree that it is not a very comprehensive listing, but at least excluding, for example, the right to protection from cruel and unusual punishment. Would you be prepared to look at those areas which this Committee as a whole could agree upon should be protected from trampling upon at any time? Mr. Chrétien: If you ask me would I be willing to look upon, I can look into that but I do think that why we have proceeded in that way, the technical reason, I will ask my advisor to reply to aspect. Mr. Strayer: Well, any attempt to make a list is going to be arbitrary, I think, even if you look at the international covenant. It is somewhat arbitrary in the rights it says can never be derogated and those which it implies can be derogated. For example, in time of emergency or war it forbids derogation from rights such as rights against discrimination on the basis of race or colour but it allows discrimination, apparently, on the basis of national origin; and one can argue overwhat rights ought to be in theory derogable in times of emergency and ones which might not be, but the approach which we are taking here in the new Section I is to leave that as a matter of judgment in the given situation and it is very hard to imagine any situation, for example, where a court would say that it was, in the words of the section, demonstrably justified in a [Page 47] free and democratic society to use cruel or unusual punishment. Even in time of emergency. Mr. Robinson: Mr. Chairman, I understand the argument that was made, but just to conclude this question with respect to Section 1, I do hope that if the Committee can agree on certain restricted areas which, as you say, should never be, I assume you would agree, never be violated, that the government would be prepared to at least consider a possible amendment to that effect.

I wonder if there is a difference in your view in onus between a reasonably justifiable onus on the person before the courts to show that their rights, let us say that the legislatures have not infringed upon the rights of the person, or demonstrably justifiable. To me it seems there might be a heavier onus on the legislature to show they have not. Mr. Chrétien: I have explained this morning the policy of why we have done it, and that it was to find an equilibrium between the rights of the citizens to be protected by the courts and the power of the legislature or Parliament to pass law, and perhaps you are asking me a rather technical question and would you reply to that, Mr. Strayer, please. Mr. Strayer: Mr. Chairman, it was the belief of the drafters that by going to these words demonstrably justified or can be demonstrably justified, it was making it clear that the onus would be on the government, or whoever is trying to justify the action that limited the rights set out in the charter, the onus would be on them to show that the limit which was being imposed not only was reasonable, which was in the first draft, but also that it was justifiable or justified, and in doing that they would have to show that in relation to the situation being dealt with, the limit was justifiable. So whereas before there was no indication as to who had the onus of proving that the limit was reasonable or unreasonable, or whether it was generally accepted or not generally accepted. This seems to put the onus, appears to put the onus on the government that has to try to uphold some kind of limit to the rights set out in the charter. Uphold the legislation or administrative action or whatever it is in question. I might add, Mr. Chairman, that this kind of language was recommended by the Canadian Human Rights Commission. They had two possible drafts, and one of them was very similar to the words in the present proposal, the new proposal. They used words such as prescribed by law as are reasonably justifiable in a free and democratic society. Professor Tarnopolsky, in appearing before the Committee, talked about using words such as restrictions as are prescribed by law and are -necessary for the purposes of a free and democratic society, or he said you could use terms such as demonstrably justifiable or demonstrably necessary, but he said the onus has clearly to be on the one who argues in favour of restrictions, and that apparently is what he thought such language would do, it would put the onus on the person trying to justify the limitation.

The idea is that we have to find the proper balance between the protection of individual rights and the legitimate power of any legislative body. You have to respect the fact that there are legislatures and people have been elected there and they should keep some power of legislation.

I take it that the purpose of this change was to somewhat reduce the limiting direction to the courts of Canada that this section gives when they interpret the rest of the Charter. I want to explore with you just how far it really goes in making that change in the rules; because “reasonable limits” is the same phrase we have in the previous one, and it is modified by “prescribed by law”. That is number one. That can probably be married off with “parliamentary system of government” which you have in the first effort. Then it goes on to say, as can be demonstrably justified Will, if there is a law passed by Parliament, I think the initial assumption is that it is justified or Parliament would not have done it. [Page 42] Whether the courts will take that view, I do not know. But it seems to me that there is a risk that they will. Then you go on to say: as can be demonstrably justified in a free and democratic society. Well, if a free and democratic society passes a law, what is the difference between the situation that we have here and the one you had in the formal one where you said: generally accepted in a free and democratic society with a parliamentary system of government. My fear is that you have not moved very far in removing the objections of these 19 bodies which have appeared before us, and I would like to have your rationale. Mr. Chrétien: I think we have moved quite far; and, in the case of those who were the main proponents of the change, Professor Tarnopolsky and Mr. Fairweather, it is the text which they have more or less suggested, and they have approved it and commended me on it. This is to make sure that, even if the law were passed—it was a danger before that it was almost impossible for the court to go behind a decision of a Parliament or a legislative assembly; but here, even if the law is passed, there is another test, namely that it can be demonstrably justified in relation to this Charter. So this limited clause narrows the limits of the courts. The first one—and you heard the testimony given here, where there was argument to the effect that it was so limiting in scope as to be almost useless, and we would be caught in the same position as we were in the case of the Bill of Rights of Mr. Diefenbaker which has not in fact been used in the courts. Why have we done it? It was not my initial proposition. I have done it under pressure from the provincial governments. It is a good illustration of trying to get on the right keel and you end up with a situation where it was meaningless. So we went back to the original text. This will permit the courts to appreciate whether legislation passed by the different levels of Parliament and legislative assemblies are in conformity with the Charter. The intention of a Charter is to limit the scope of the legislature and Parliament in relation to the fundamental rights of Canadian citizens.

Now, the point is that we heard testimony from some 19 different organizations, I will not name them all but some of their presentations stick in my memory, the Canadian Civil Rights Association, the Canadian Jewish Congress, the Canadian Human Rights Commission, the Canadian Advisory Council on the Status of Women, the National Association of Japanese Canadians, and a good many others, who were concerned about Section 1. While I cannot attempt to summarize with any accuracy what each one said, some of them, at least—and some of the important ones left me with the impression—that this Section 1, as it stood, was so limiting in its impact and force as to destroy—in fact some of them went so far as to say they would just as soon not have the whole thing if Section l was in there: that the limiting character of Section l was so severe as to destroy the effectiveness of the other guarantees in the Charter.

Section 1: many witnesses and most members of the Committee have expressed concerns about Section 1 of the Charter of Rights and Freedoms. These concerns basically have to do with the argument that the clause as drafted leaves open the possibility that a great number of limits could be placed upon rights and freedoms in the Charter by the actions of Parliament or a legislature. The purpose of the original draft was to ensure that the people, the legislatures and the courts would not look upon rights as absolute, but would recognize them as subject reasonable limitations. While some believed no limitation clause was necessary, many witnesses agreed such a clause is desirable but argued that a more stringent formulation is necessary. You have received a number of constructive suggestions. I am prepared on behalf of the government to accept an amendment similar to that suggested by Mr. Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission and by Professor Walter Tanopolsky, President of the Canadian Civil Liberties Association. The wording I am proposing is designed to make the limitation clause even more stringent than that recommended by Mr. Fairweather and Professor Tarnopolsky. I am proposing that Section I read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.

The second point I wish to make is the very serious reservations we have with the manner in which Section 1 is presently framed. More specifically the phrase: . . . only so such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. Its broadness and vagueness can be interpreted to give the government the licence to invoke, for instance, the War Measures Act or any future emergency powers act. It is our view that rather than limiting the rights of individuals and groups on certain occasions, there should be limits put on the definition of what constitutes an emergency. This principle should in some fashion find expression in the constitution. Also, unless the constitution guarantees that the Bill of Rights is to supersede all past, present and future legislation, then ladies and gentlemen, we believe that you are not only condoning the past, you are preparing the way for history to repeat itself.

Mr. Chairman, I would hope in light of the grave concerns that our witnesses have today about Section 1, that the minister be requested to come back to this committee before December 8, preferably the fifth or sixth or so, earlier in any event, so that we can find out in an objective and non-partisan way what he intends to do about Section 1, whether it is to be left in its present form. The present form reflects not communication and dialogue with groups such as your own; it reflects the views of the provincial premiers of this country. It reflects the findings of the minister in his deliberations across Canada this summer as well as the selfishness of many provincial premiers. I think Section 1 is defective and has to be improved. I cannot presume to be talking for my party, but certainly I am speaking for myself. So, I am very pleased with the forcefulness with which you have made your points.

Ms. L. McDonald: I think for reasons similar to what Mr. Fairweather and other witnesses have raised regarding the treatment of Japanese Canadians. It was within my lifetime that married women were thrown out of the Public Service on marriage. The Stella Bliss case shows how unacceptable women in the labour force are if they are pregnant or if they have very young children. We cannot take as generally accepted all of the rights and freedoms that we would want to have. There are still people that would argue that women do not have a right to jobs on the same basis that men have that right. So we would certainly want that to be in there very strongly.

Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”. Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted. If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any cirumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.

We surmise that Section 1, at least in part, was included to give Parliament the chance to limit our civil liberties when it is necessary in times of war. apprehended insurrection or other civil emergencies and we suggest that it is in keeping with the democratic traditions of the western world if the limitations that can be placed on our liberties are explicitly spelled out in the charter of rights and not left to something like Section 1. We suggest that Section 1 be reduced to a simple preamble explaining what the charter of rights is intended to accomplish and that Section 29 include a limitation that will come into effect only in times of war or other times of public emergency and that this section ensure a number of aspects. In time of public emergency which threatens the life of the nation so that it is a serious emergency and the existence of which is officially proclaimed, Parliament may authorize that temporary restriction of certain rights and freedoms to the extent strictly required by the exigencies of the situation but in a manner that the other rights and freedoms set out in this charter will be preserved. We also stipulate that there are some freedoms and rights set out in the charter that need never be interfered with no matter how grave the emergency. We recommend that the non-discrimination rights never be tampered with and that there never be any derogation from freedom of conscience and religion, the right to vote and hold office, because there are already protections allowing for the suspension of elections which are found in Section 4. The right to life, liberty and security of the person except when denied by a law duly enacted; the right to being safe from cruel and unusual treatment and punishment; the right to a translator in judicial proceedings should in our view never be suspended because of war or apprehended insurrection, and all the language rights in Sections 16 to 23 need in our view never be suspended because of any kind of civil or martial disability.

I wonder if you could confirm that unless this Section is indeed amended that we would in fact be in violation of our requirements under the International Covenant on Civil and Political Rights and indeed, because we have signed the optional protocol, that another state could indeed take us before a tribunal of the United Nations to complain of that violation. Mr. Fairweather: Section 1, indeed that would be my opinion. You put it very well.

We are troubled by the language of Clause 1 which, in its present form, raises fundamental doubts about just how serious the committment is to reform. Those are strong words but you will hear them, I am sure, again and again from witnesses who come before this Committee. The language used departs from that to be found in domestic constitutions of many modern states but what is even more significant is it departs from the European Charter and the international Bill of Rights ratified by Canada, because the language in Clause 1 is unique, it has never been tested. On the other hand, jurisprudence is building up which explains the language of other domestic and international charters. It is in our opinion foolish to turn our backs on a useful body of jurisprudence. As well, the language seems to us to be dangerously broad. We know you will seriously consider recommendations for a more careful wording of Clause 1.

Mr. Fairweather: It is seriously flawed, and I just cannot believe it is going to be the final enunciation of the principle.

My second question relates to Section 1, which I understood at the outset from your remarks to be of considerable concern to you, and I have forgotten your words, but I think you regard the Charter of Rights as seriously flawed, those are the words I recall, in relation to Section 1.

Mr. Robinson: I would also like to ask you with respect to the question that was touched upon by Mr. Epp and also initially raised by yourself, and that is the actions that were taken during and immediately after World War II with respect to Canadians of Japanese origin. Would you indeed confirm that it is at least very possible that under the charter as it is presently worded in view of the fact that it could be argued that that action was “generally accepted” at that time, that that kind of action would indeed be permitted under Section I as it is now worded. Mr. Fairweather: Section I raises that danger.

Mr. Fairweather, what I would like to do from looking at materials that you have provided earlier, is take you to your concern of Section I of the proposed resolution. At the bottom of your presentation as well as in the accompanying documents you stress your concern about Section l. I would like to ask you from your perspective if the clause remains essentially in the form it now appears what are the technical consequences of that clause in relation to the protection of rights and freedoms? Mr. Fairweather: They are so serious that I could not imagine this Committee letting Section l go unamended, That section as drafted would challenge, in my opinion, the rest of the charter, and I suspect somebody is going to be getting an amendment. It is, as I said, turning our backs on the international and national jurisprudence, and it is very broadly drafted. Why we do not use the language that is well accepted now and has been ratified by Canada, for the life of me I have no idea. This is a strong statement but I have strong feelings. I am absolutely committed to the entrenchment and the patriation and the goals. They are wonderful goals for this country at last but why not go for something better. Mr. Epp: From your experience as a Commissioner of the Human Rights Commission, could you give us examples of if this proposed resolution had in fact been in effect with the prohibitions in Section 1, can you give us some specific examples of the restrictions it would have given or caused both to rights and freedoms and also to the Commission? Mr. Fairweather: Yes. One was given last night, if I know correctly, by the Minister of Justice for Canada. It might be that generally accepted standards in this country for mandatory retirement, the anti-discrimination part having to do with age, could be challenged and rendered meaningless as a reform mechanism, because the generally accepted standards now are quite illiberal, if I may use that word in this place. [Page 12] The generally accepted standards for Canada are to push people out at certain ages, I greeted this charter with excitement when I saw that the Government of Canada had included age, but when I see the language of Section 1, I wonder. Another message that surely cannot be forgotten is that the generally accepted standards in Canada in 1940 and 1941 were to take Canadians whose offence was that they were of Japanese origin. In the Wellington Street Archives last night while you were doing something else I went to the festival of the 100th anniversary of the Chinese in Canada. They came to build the railway and I am as shocked as I know senators and members are to remember that people who are enshrined and rightly, in our history were perpetrators of the Chinese Exclusion Act, the Chinese $50 a head tax act. The Chinese people in this country were not allowed to vote in a province I think until after the Second World War. It was Mr. Diefenbaker who gave the Native peoples the right to vote in the late 1950s. I am not saying that a government that follows this one would, but it could, because those were I guess until reform came the accepted standards. This document is to be entrenched, enshrined, as a statement to the people who have their loyalty to Canada. Mr. Epp: Do I understand you correctly, sir, that if the document before us were to be enshrined, entrenched, that an incident like Canadians of Japanese origin and the removal of these people from various parts of Canada, their prohibition of freedoms at that time, that in fact that kind of action would still be possible under the charter in its present form. Mr. Fairweather: I think, Mr. Epp, my duty is to warn you, and I have given some examples, age and these other offensive matters could be put in jeopardy. I am not saying they will but they could. I think most of this charter is really a superb piece of work, but I cannot see why Canada wants to turn its back on accepted international standards and language that has been adjudicated. That is why I am being a bit fussy. It clouds the rest of a noble document.

Section 1 of the Charter is a very strange article. You have had a lot of comment on it. I do not wish to burden you with repetition. We made two points about it, looking at the first page of our brief, We say that Section I tends to guarantee charter rights, and freedoms, and at the same time provides justification for the suspension of charter rights during an emergency. I have a feeling that the draftsmen, when they drafted Section 1, were torn between two conflicting pressures on them intellectually and practically. The pressures were, how to maintain the theory of parliamentary supremacy when introducing a theory of a charter regime. It was an attempt to find some kind of practical, legal, political equilibrium between a charter regime system, on the one side, and a parliamentary supremacy regime on the other, that Section I represents. But then, when you look at it, it is so great an invitation in language such as, “subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”, that any agressively minded lawyer with an aggressively minded government could ride through that series of gates with very little difficulty and find the charter heavily wrecked en route. [Page 86] We feel that is not the way to begin a regime of a charter; it is not the way to start a new system of rights. We solemnly recommend the total elimination of Section 1, because when you go into Section 2 and the rest of the charter you are very specific there. You do not need Section 1. To the extent that you need emergency powers, you will have them. We recommend that in a new article, Article 28(a) at the end of the brief. To the extent that you want to have an equilibrium between a charter regime and parliamentary supremacy, you must accept the fact that, once you introduce a charter regime, parliamentary supremacy is modified for ever to that extent. That is a plain legal and political fact, and you cannot have the best of both worlds, except in an emergency and we provide for an emergency.

Mr. Irwin: Is that not the whole raison d’être of this discussion, how much power are we as legislators going to give up by way of entrenched rights to the courts, to not be touched forever. The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky. [Page 27] Professor Tarnopolsky: Mr. Chairman, if I may answer that. I think our position is that you should either fish or cut bait. If you are going to have a bill of rights, make it a bill of rights which cannot be just over-ridden any time that a court is convinced, which we are suggesting would be relatively easy, that the limits are those which are generally acceptable. It would not just be in legislation, because, again, if I could use the Hogan case, I think that it would not be very difficult to convince a court that the practice of the police, namely, how can a lawyer help the chap, let him take the breathalizer, it is probably generally accepted, So that I think the fear of those of our members who support a bill of rights would be that it would be disillusioning, that it would be disappointing for the populace to think that they have a bill of rights which really over-rode inconsistent legislative administrative action to find out it is not. We think that rather than promoting that kind of cynicism, the Parliament should face up to either creating a bill of rights which over-rides or stay with the one which we now have, which we have got some jurisprudence on and there are more cases than just a Drybones case which have been applied with some effect.

Mr. Irwin: Now, you have serious difficulty and a great deal of criticism with Section 1, which says 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government. I suggest that if an abuse occurs, then the person who is abused could apply to the courts to see if Parliament has abused that person by legislation and if the courts decide that such abuse has occurred in legislation, and it does not fit in within reasonable limits as are generally accepted in a free and democratic society, then that legislation will be struck down. Mr. Borovoy: The answer to that is yes but the difficulty is the test. If you are talking about that which is generally [Page 26] accepted in a free and democratic society with a parliamentary form of government, you may well be talking about everything that Parliament or the legislatures have said is acceptable and to the extent that you are doing that, then it renders the entire charter a verbal illusion.

In that particular section, you seem to be recommending to the Committee that unless we change Section 1, then in a sense the game was not worth the candle, that the rights that are promised are not delivered. I want to make sure that that is clear to the Committee. Are you suggesting that unless we change Section l, then the resolution with respect to civil rights that is before us is either useless or dangerous or both? The Joint Chairman (Mr. Joyal): Mr. Midanik? Mr. J. S. Midanik (Q.C., Canadian Civil Liberties Association): Yes, that is our position. Not only that you change Section l, but that the rest of the charter be changed along the lines we have indicated because we feel that the rest of the charter itself is also defective in many respects. But the major problem deals with Section I and if any form of Section 1 is kept so that there be some limitation at all, our position is that it should apply only to Section 2 and not to the rest of the charter. In other words, that the specific rights in the Charter not be limited at all by any Section 1, but if there be any specific limitations, they apply to Section 2 and any such limitations might well be delineated more clearly, as contained in a number of the international covenants. So, what we are saying again is that if what you are going to give us is what we have now, what is before us, our position is thanks, but no thanks, we would rather take our chances with what we have.

Mr. Chairman, the serious structural limitations which occur repeatedly through this bill find first expression in Section 1 of the Charter. The limiting provision of this section is so general as to permit, if not cause, the certain failure of everything which the Charter sets out to achieve. If this is poor [Page 7] drafting, then it must be improved. If, however, it is the clear expression of the will of its creators, then they have a view of entrenchment which we will submit does not find reflection in the popular will of Canadians. If the rights set out in the Charter are subject to the limits stipulated in Section I then Parliament acting alone will always have supremacy over the Charter, effectively denying what the Charter proposes to create—entrenchment.

are the limits mentioned in Section 1 whatever may be the individual linguistic rights mentioned elsewhere in the Charter, embarrassing for you as Commissioner of Official Languages. Mr. Yalden: Mr. Chairman, broadly speaking this part of the first section embarrasses me a little, not necessarily as Commissioner of Languages, but as a citizen reading the text, I do not understand it very well. I find it so broad that whatever it says does not represent in my view a requirement for a legislature who should guide the courts very clearly, very explicitly. If it is the case, it seems to me that this section should be more specific, not stricter than it is. I have followed the discussion here in the Committee, and I said several times tonight I am not a lawyer, consequently, I cannot really express a categorical opinion. It is embarrassing for me for very broad reasons. As for the linguistic aspect, would the linguistic rights mentioned in Sections 16 to 23 be affected by this short paragraph? I really could not give you an answer, precisely, because I find these words: subject only to such reasonable limits as are generally accepted in a free democratic society with a parliamentary system of government so vague that I do not know what they mean. If I knew, I would answer you.

Sawn Lumber from New Brunswick, and of Coal and other minerals from Nova Scotia.

A Legislative union of the British North American Provinces is not liable to all the objections which, as I believe, apply. to a Federal or Federative union; but it is liable to the objection that great discontent in the Lower Provinces would follow the centralization in one Government, and in one Legislature, at Quebec or Montreal, of the powers and authority now vested in the Governments and Legislatures of the several provinces; and, moreover, I believe that no single Government or single Legislature could, in present circumstances, satisfactorily govern and legislate for a territory extending over an area so immense, and so sparsely populated as many portions of that territory are.

Again, the establishment of a Federal or Federative union would, as l believe, be immediately followed by an agitation in favour of the election or the Local Governors, instead of their being nominated by the Crown. And it would be the more difficult to resist this application on account of the purely local or municipal character of the powers with which the Governors would he intrusted ; but the compliance with the request would he in my opinion-highly dangerous, not only because it would at once be fatal to British influence in the Local Governments and Local Legislatures, but also because it would, I believe, be followed quickly by a similar application from the United ‘Provinces, with regard to the Gov,ernor-Generalship, still more difficult to resist from the force With which it would be pressed, but the compliance with which would at once practically sever the connexion between the Crown and British North America.

union which they contemplate is not to be necessarily of the same character as that which binds together the several States of the neighbouring Republic. But upon whatever basis a Federative union might be formed, it must, I think, be liable -to one of two objections, either of which ought, as it appears to me, to be fatal to such a scheme. For if the Local Governments and Local Legislatures are still to- continue to exercise the same authority in local legislation and local matters which now appertains to them (and there is comparatively little business of any other description which they are now called upon to discuss), then the result of such a union will be still further to degrade the Local Governments and Legislatures without diminishing their authority while the ‘Central Government and Central Legislature, nominally endorsed with high powers, and proud of their position, but with little or no business of a purely Colonial character to occupy their attention, would, I fear, claim an authority on subjects not purely Colonial, but also of Imperial importance (such as questions of foreign trade, &c.), and shortly be brought into collision with Her Majesty’s Government and with the Imperial Parliament. If, on the other hand, the Local Governments and Local Legislatures were shorn of a large portion or their present powers (to which proposal 1 do not believe that the Lower Provinces would agree), the inhabitants of the Lower Provinces would, in my opinion, very soon, if not immediately, become discontented with an arrangement which would deprive them of -the power they now possess over the management of their own affairs, and render New Brunswick, Nova Scotia, and Prince Edward’s Island, Provinces of Canada, instead of being, as they now are, Provinces of the British Empire.

I presume that the word ‘”Federative” has been used ‘in the Memorandum of the Executive Council of Canada to imply that the

should embrace the question of a Legislative, as well as that of a Federal or Federative union, and the expediency of uniting some, as well as that of uniting all the provinces

It is possible that a Federative union of the British North American Provinces would afford to the Canadian Government the – readiest mode of escape from the difficulties and embarrassments which now surround the settlement of the “seat of Government ” question, and I presume that I am right in supposing that, although the ostensible object of the proposed inquiry is the union by Federative bonds with Canada of the other British North American Provinces, the Canadian Government have no less in view the, severance of the bond which now joins the two Canadas in a Legislative Union, and the substitution for that bond of a more elastic tie of a Federal or a Federative character.

ment to this may be added that, by the proposed distribution of the revenue, each province would have a direct pecuniary interest in the preservation of the authority of the Federal Government. In these respects’ it is conceived that the proposed Confederation would possess greater inherent strength than that of the United States, and would combine the advantages of the unity for general purposes of a Legislative union, with so much of the Federative principle as -would give all the benefits of local government and legislation upon questions of provincial interest.

The Local Legislatures would not be in a position to claim the exercise of the same sovereign power-, which have frequently been the cause of difference between the American States and their General Govern-

It will be observed that the basis of confederation now proposed differs from that of-the-United States in several important particulars. It does not profess to be derived from the people, but would be the Constitution provided by the Imperial Parliament; thus affording the means of remedying any defect, which is now practically impossible under the American Constitution.

The Confederation might include the constitution of a Federal Court of Appeal.

It will form. a subject for mature deliberation whether the powers of the Federal Government should be confined to the points named, or should be extended to all matters not specially entrusted to the Local Legislatures.

That the powers of the Federal Legislature and Government should comprehend the Customs, Excise, and all trade questions; postal service, militia, banking, currency, weights and measures, and bankruptcy; public works of a national character; harbours and lighthouses; fisheries, and their protection; criminal justice; public lands, public debt, and government of unincorporated and Indian territories.

When Mr. Galt, therefore, came into office; it was natural that the question of an union of the Colonies should at once be discussed-. I found him and several of the gentlemen about to assume office deeply impressed with the idea that, in some such union alone could be found the ultimate solution of the great question which had been made a ground of agitation by Mr. Brown, and his friends, at the general election, viz., the existing equality of representation -of Upper and Lower Canada, and the alleged injustice inflicted on the former by such equality. This question is one, I need not say, which threatened to touch the root of the present union of the two sections of Canada -as by law established, and might imperil its existence by reviving all the old antagonism of race and religion.

The union of Lower with Upper Canada was based upon perfect equality being preserved between these Provinces-a condition the more necessary from the differences in their respective language, law, and. religion; and although there is now a large English population in Lower Canada, still these differences exist to an extent, which prevents any perfect and complete assimilation of the views of the two sections.

The population, trade, and resources of all these Colonies have so rapidly increased of late years, and the removal f trade-restrictions has made them, in so great a degree, self-sustaining, that it appears to the Government of Canada exceedingly important to bind still more closely the ties of their common allegiance to the British Crown, and to obtain for general purposes, such an identity in legislation as may seem to consolidate their growing power, thus raising, under, the protection of the Empire, an important Confederation on the North American Continent. At present, each Colony is totally distinct in its government, its customs and trade, and its general legislation. To each other no greater facilities are extended than to any foreign State; and the only common tie is that which binds all to the British Crown. This state of things is considered to be neither promotive of the physical prosperity of all, nor of that moral union which ought to be preserved in the presence of the powerful Confederation of the United States.

That the Federal, Government should be composed of a Governor General, or Viceroy, to be appointed by the Queen; of an Upper House, or Senate, elected upon a territorial basis of representation and of a House of Assembly, elected on the basis of population., The Executive to be composed of Ministers, responsible to the Legislature:

The whole of the clauses which refer to the latter are as complete as the most ardent supporters of union could desire, tempered by the lew exceptions by means of which the provinces have wished to shelter their local institutions from attack.

The 34th paragraph of the 29th clause of the scheme reads thus: ” The establishment of a General Court of Appeal for the Federated Provinces.” What is the object—what will be the character of the tribunal?

We ought to look at the question apart from party considerations, and on its own merits: that is to say, we ought to place in the Constitution a counterpoise to prevent any party legislation, and to moderate the precipitancy of any government which might be disposed to move too fast and go too far,—I mean a legislative body able to protect the people against itself and against the encroachments of power. (Hear, hear.) In England, the Crown has never attempted to degrade the House of Peers by submerging it, because it knows well that the nobility are a bulwark against the aggressions of the democratic element. The House of Lords, by their power, their territorial possessions, and their enormous wealth, are a great defence against democratic invasion, greater than anything we can oppose to it in America. In Canada, as in the rest of North America, we have not the castes—classes of society—which are found in Europe, and the Federal Legislative Council, although immutable in respect of number, inasmuch as all the members belonging to it will come from the ranks of the people, without leaving them, as do the members of the House of Commons, will not be selected from a privileged class which have no existence. Here all men are alike, and are all equal; if a difference is to be found, it arises exclusively from the industry, the intelligence, and the superior education of those who have labored the most strenuously, or whom Providence has gifted with the highest faculties. (Hear, hear.) Long ago the privileges of caste disappeared in this country. Most of our ancient nobility left the country at the conquest, and the greater number of those who remained have sunk out of sight by inaction. Accordingly, whom do we see in the highest offices of state? The sons of the poor who have felt the necessity of study, and who have risen by the aid of their intellect and hard work. (Hear, hear.) Everything is democratic with us, because everyone can attain to everything by the efforts of a noble ambition. The legislative councillors appointed by the Crown will not be, therefore, socially speaking, persons superior to the members of the House of Commons; they will owe their elevation only to their own merit.

He said that even if the Lower House were altogether liberal, the Upper House would remain composed of conservatives; this was his fear. He has been a long while trying to gain predominance for his democratic notions, but it is evident he will not succeed.

relative to the constitution of the Legislative Council, and said that he had not looked at the question, while speaking the other evening, in the same light as the honorable member for the county of Quebec. He spoke of the conservatives as a party, and his fear was, not that the Upper House would not be conservative enough, but that it would be too much so.

MR. GEOFFRION—YOU have equality between the two provinces. HON. ATTY. GEN. CARTIER—Yes, we have equality, but not as a race, nor in respect of religion. When the leader for Lower Canada shall have sixty-five members belonging to his section to support him, and command a majority of the French-Canadians and of the British from Lower Canada, will he not be able to upset the Government if his colleagues interfere with his recommendations to office? That is our security. At present, if I found unreasonable opposition to my views, my remedy would be to break up the Government by retiring, and the same thing will happen in the Federal Government.

HON. ATTY. GEN. CARTIER—Am I not in a minority at present in appointing judges? And yet when I propose the appointment of a judge for Lower Canada, is he not appointed?

the objection of the honorable member for the county of Quebec is well founded, because the Federal Government may appoint all English or all French-Canadians as legislative councillors for Lower Canada. If the honorable member had read the resolutions, he would have found that the appointments of legislative councillors are to be made so as to accord with the electoral divisions now existing in the province. Well, I ask whether it is probable that the Executive of the Federal Government, which will have a chief or leader as it is nowVI ask whether it is very probable that he will recommend the appointment of a French-Canadian to represent divisions like Bedford or Wellington for instance?

Lower Canada is in a peculiar position. We have two races of people whose interests are distinct from each other in respect to origin, language and religion. In preparing the business of the Confederation at Quebec, we had to conciliate these two interests, and to give the country a Constitution which might reconcile the conservative with the democratic element; for the weak point in democratic institutions is the leaving of all power in the hands of the popular element. The history of the past proves that this is an evil. In order that institutions may be stable and work harmoniously, there must be a power of resistance to oppose the democratic element. In the United States the power of resistance does not reside in the Senate, nor even in the President.

a class of men who would not represent the province for which they are appointed, and who could give no pledge that they would maintain its institutions.

he will see that the first nominations are to be made by the existing governments. Thus the Government of Canada, that of New Brunswick and that of Nova Scotia will appoint legislative councillors, but afterwards the Federal Government will make the appointments. The honorable member for Quebec can, with reason, draw the conclusion that there is no guarantee that the views of the provinces will be respected. I for my part have investigated the matter, more in connection with the power that will be vested in the legislative councillors. I asserted that by appointing them for life and limiting their number, an absolute authority would be created, which would be quite beyond the control of the people and even of the Executive; that the power of this body will be so great, that they will always be in a position to prevent every reform if they thought proper, and that a collision between the two branches would be inevitable and irremediable. The danger arising from the creating of such a power is exactly that of being obliged to destroy it if they resist too obstinately the popular demands. In England there is no necessity for breaking down the obstructions sometimes presented by the House of Lords, because the Crown having it in its power to appoint new peers, can overcome the difficulty. Here there will be no means of doing it, when the number of councillors is fixed. Accordingly, I have looked at the question through the medium of the powers assigned to the councillors, whereas the honorable member for the county of Quebec fears lest the Government should make choice of men who would not represent public opinion in the provinces; that they might appoint members all of French origin or all of English origin to represent Lower Canada, or take them all from among

In our Constitution it is the duty of the Legislative Council to exercise the conservative influence, and to modify the legislation too energetic and too full of outside effervescence, which is sent for their consideration from the House of Commons. But when public opinion gains vigor from the obstacles which it encounters, and the reforms demanded are rational and come before them in due course, there is no danger that the legislation which embodies them will be obstructed in its progress; for the people will rise in their majesty and in their sense of justice, as did the people of England in 1832, and the obstacles they might meet with on their way would be swept away as by a torrent. (Hear, hear.) HON. MR. DORION—That is exactly where the danger lies. HON. MR. CAUCHON—That is the danger which assailed the House of Lords in 1832, but no one would venture to confront to the last extremity a danger such as this. But the honorable member for Quebec tells us, if I understand him rightly, that we have not sufficient guarantees for Lower Canada in the appointment of the legislative councillors. The selection of legislative councillors has no bearing whatever on the question we are now considering, viz., whether the appointment by the Crown is or is not preferable to the elective principle. But in answer to him I will say, that the scheme before us seems to be quite clear. According to this plan the candidates for the Legislative Council will be recommended by the local governments and appointed by the General Government, and it is by this very division of powers that the selections are sure to be good, and made in conformity with the desire and sentiments of the provinces. HON. MR. DORION—Only the first nominations are to be made in this manner, not those which may be made afterwards. HON. MR. CAUCHON—The first nominations will be made by the present Governments, and the federal councillors will be taken from the present legislative councillors to the number prescribed, 24, provided so many can be found who will accept the post, and who possess the requisite property qualification. The Conference has engaged, by the terms of the scheme, to respect the rights of the Opposition, and any government who should fail to carry out so solemn an engagement would well deserve to lose the public confidence. (Hear, hear.) I repeat that the mode of appointing the councillors in no wise affects the conservative principle of nomination on which the constitution of the Legislative Council ought to be based.

It is true that the House of Lords, Conservative though it be, finds itself removed from all popular influence; but its numbers may be increased upon the recommendation of the responsible advisers of the Crown, if such a measure were to become necessary to obtain the concurrence of both Houses, or to prevent a collision between them. The position which its members occupy in it establishes a sort of compromise between the Crown and the popular element. But this new House, after Confederation, will be a perfectly independent body; its members will be nominated for life, and their number cannot be increased. How long will this system work without bringing about a collision between the two branches of the Legislature? Let us suppose the Lower House composed in a great part of Liberals, for how long a time would it submit to an Upper House named by Government? Be kind enough to observe, Mr. SPEAKER, that under the old system, the Legislative Council possessed the same elements of existence as the House of Lords, and that the Crown could increase its numbers at need; it augmented it in 1849, as it threatened to augment the House of Lords in 1832. Observe, again, that it is precisely this control exercised by the Crown over the Upper House that the hon. gentleman found so fatal to legislation previous to 1856. But there is a more rational manner of appreciating the part sustained by the House of Lords in the British Constitution. No one denies to the Sovereign the abstract right of increasing at will the House of Lords; but such right has never been exercised but for the purpose of rewarding men distinguished for great national services and when, in 1832, WILLIAM IV. granted Earl GREY the tremendous power to swamp the representative body of the great landed nobility, it was because the country was moving with rapid strides towards revolution, and because there remained to the Sovereign but two alternatives, either to lessen the moral weight of the House of Lords, or to see his own throne knocked to pieces from under his feet.

It must then have been a real revolution, this nomination of one hundred new peers, a revolution as real as that which menaced the Throne; and do we not feel persuaded that if one day our Federal Legislative Council were to place itself obstinately and systematically in opposition to popular will, matured and strengthened by ordeals, it would not be swept away by a revolutionary torrent such as threatened to sweep away the House of Lords in 1832? This Council, limited as to numbers , because the provinces insist on maintaining in it an equilibrium without which they would never have consented to a union, this Council, sprung from the people—having the same wants, hopes and even passions, would resist less the popular will in America, where it is so prompt and active, than could the House of Lords in England, where the masses are inert because they have not political rights; reason tells us thus because they would be a less powerful body socially or politically.

We have accorded the principle of representation based upon population in the House of Commons of the Federal Government, and that is without doubt a great sacrifice; but we ought only to make so important a concession on the condition that we shall have equality of representation in the Legislative Council, and the right reserved to ourselves to appoint our twenty-four legislative councillors, in order that they may be responsible to the public opinion of the province and independent of the Federal Government.—Without this essential guarantee I affirm that the rights of Lower Canada are in danger. For my part I am ready, on behalf of Lower Canada, to give up her right to elect directly her twenty-four legislative councillors, although the retention of the elective principle might perhaps be the surest means of preserving our institutions; but I am anxious that the new Constitution now proposed should give us adequate guarantees that the legislative councillors to be appointed for life should, at all events, be selected by the Local Government of Lower Canada, which would be responsible to the people. These not ill-grounded sources of anxiety I should like to see removed.

in relation to the qualifications and appointment of the legislative councillors. Like him, I am quite of opinion that the conservative element ought, of necessity, to be the basis of the Legislative Council, to counterbalance the popular element. This principle governed the constitution of the House of Lords in England, that of the Legislative Council in Belgium, and that of every well organized representative government.

In the scheme of the Quebec Conference there was no delegation of the supreme authority, either from above or below, inasmuch as the provinces, not being independent states, received, their political organizations from the Parliament of the Empire.

The hon. member for Hochelaga has declared that he was willing to accord to the Protestants the guarantees of protection which they sought for the education of their children; but in this he has been forestalled by the Quebec Conference and by the unanimous sentiment of the Catholic population of Lower Canada. If the present law be insufficient, let it be changed. Justice demands that the Protestant minority of Lower Canada shall be protected in the same manner as the Catholic minority of Upper Canada, and that the rights acquired by the one and the other shall not be assailed either by the Federal Parliament or the local legislatures.

Protestantism dominates in the government and in the legislature, and yet has not Catholicity been better treated, and has it not been better developed, with more liberty and more prosperity than under the regime of the Constitution of 1791. (Hear, hear.) Living and laboring together we have learned to know, to respect, to esteem each other, and to make mutual concessions for the common weal.

On the contrary, did it not emancipate the latter, civilly and religiously, and did it not give that minority privileges which it had not hitherto possessed? If our people are inflexibly attached to our faith, it is also full of toleration, of good-will towards those who are not of the same belief.

Before the union, the parliamentary majority in Lower Canada was Catholic, and although it was long involved in a struggle with power, was it ever guilty of an injustice towards the Protestant minority?

And yet when the honorable member for Joliette asked with much reason of the honorable member for Lotbinière why he did not speak of Confederation based upon monarchical principles, the latter gentleman answered that he could not speak of what did not exist, and of what was absurd.

They did not act wrongly then, those forty chosen men of British North America who came to Quebec to erect a new nation on the monarchical basis, and as much as possible on the principles of the Parliament of Great Britain.

M. DE TOCQUEVILLE has lived too long; his admirable work on democracy in America produces upon our minds, at the present day, only the effect of an heroic poem; it is the Isle of Calypso, so admirably sung by FENELON, but which fades away when you have closed Telemachus.

We have also seen, not far from our own homes, that same democracy wrapped in the mantle of republicanism, moving at a rapid pace towards demagogy, and from demagogy to an intolerable despotism.

vinces, and secure efficiency, harmony and permanency in the working of the union, would be a General Government, charged with matters of common interest to the whole country; and Local Governments for each of the Canadas, and for the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, charged with the control of local matters in their respective sections. Provision being made for the admission into the union, on equitable terms, of Newfoundland, the Northwest Territory, British Columbia, and Vancouver.

principles which threatened society at large. What the Opposition detest the most in the project of the Quebec Conference, is its monarchical character, as also those words found at the commencement of that remarkable work :— The best interests and present and future prosperity of British North America will be promoted by a Federal union under the Crown of Great Britain, provided such union can be effected on principles just to the several provinces. In the Federation of the British North American Provinces, the system of government best adapted, under existing circumstances, to protect the diversified interests of the several pro-

It appears therefore that the only alternative which now offers itself to the inhabitants of Lower Canada is a choice between dissolution pure and simple, or Confederation on one side, and representation by population on the other. And however opposed Lower Canada may be to representation by population, is there not imminent danger that it may be finally imposed upon it, if it resist all measures of reform, the object of which is to leave to the local authorities of each section the control of its own interests and institutions. We should not forget that the same authority which imposed on us the Act of Union, or which altered it without our consent, by repealing the clause which required the concurrence of two thirds of the members of both Houses in order to change the representation respecting the two sections, may again intervene to impose upon us this new change.

The example of the neighboring states, in which the application of the Federal system has shown us how fitting it was to the government of an immense territory, inhabited by people of different origins, creeds, laws and customs, has no doubt suggested the idea; but it was only in 1856 that this proposition was enunciated before the Legislature by the Lower Canadian Opposition, as offering, in its opinion, the only effective remedy for the abuses produced by the present system.

The honorable member for Brockville, the Postmaster General, the Speaker, and other members representing Lower Canadian counties, in the present Parliament, have already voted for representation by population. Before long, it will become impossible to resist the demand of Upper Canada in this respect. If representation by population be not granted now, it will infallibly obtain it later, but then without any guarantee for the protection of the French Canadians.

Representation “based upon population was one of the least causes of this project. [And further on] : But, as soon as the Government found itself, after its defeat, obliged either to resign or to appeal to the people, gentlemen on the other side of the House, without there being the slightest agitation on this question, prepared to embrace their most violent adversaries, and said to themselves: ” We are going to forget our past differences, provided we can preserve our portfolios. “

Necessarily, I do not mean to say that I shall always be opposed to Confederation. The population may extend itself, and cover the virgin forests which exist between Canada and the Maritime Provinces, and commercial relations may increase in such a manner as to render Confederation necessary.

Mr. DORION argued that when Lower Canada had the preponderance of population, complaints were of the inequality of the representation of that section. The union of Belgium and Holland, which was somewhat similar to that at present existing between Upper and Lower Canada was dissolved when it was found it did not work advantageously to both countries. He instanced a number of questions on which it was impossible for Upper and Lower Canada to agree; public feeling being quite dissimilar— subjects popular in one section being the reverse in the other. He warned Lower Canada members, that when the time came that the whole of the representatives from the western portion of the province would be banded together on the question, they would obtain representation by population, and secure the assistance of the Eastern Township members in so doing. He regarded a Federal union of Upper and Lower Canada as a nucleus of the great Confederation of the North American Provinces to which all looked forward. He concluded by saying he would vote for the resolution, as the only mode by which the two sections of the province could get out of the difficulties in which they now are. He thought the union ought to be dissolved, and a Federal union of the provinces would in due time follow.

The honorable member for Brockville, the Honorable Postmaster General, the Speaker, and other members representing Lower Canadian counties in the present Parliament, have voted for representation by population. Before long, it will be impossible to resist the demands of Upper Canada in this respect. If representation by population is not granted now, it will infallibly obtain it at a later period, but then without any guarantees for the protection of the French- Canadians. The repeal of the union, a Federal union, representation based on population, or some other great change must in all necessity take place, and for my part I am disposed to consider the question of representation by population, in order to see if it may not be conceded with guarantees for the protection of the religion, the language, and the laws of Lower Canadians. I am equally ready to take into consideration the project of a Confederation of the provinces, leaving to each section the administration of its local affairs, as for example the power of regulating its own civil, municipal and educational laws; and to the General Government the administration of the public works, the public lands, the post-office department, and commerce.

With the control of our public lands in our own hands, we can attract the tide of emigration, retain our own people in the country, and advance in prosperity as rapidly as the other provinces.

It will be said that the national life of Lower Canada is so deeply rooted, that it is impossible to destroy it; but, if we desire to secure its safety, we must accept the present scheme of Confederation, under which all the religious interests of Lower Canada, her educational institutions, her public lands, in fact everything that constitutes a people’s nationality, will find protection and safety.

The Conservative party has always opposed representation by population under the present union, because under this union we are face to face with the population of a country of which the products are different from ours, and of which the interests are not always identical with ours. This question was strongly agitated. The whole people of Lower Canada resisted that demand, and the whole Conservative party firmly refused to consent to it, while the other party—the Opposition party—held out hopes to those who demanded that measure, and allied themselves with them.

The Federal system is the normal condition of American populations; for there are very few American nations which have not a political system of that nature. The Federal system is a state of transition which allows the different races inhabiting the same part of the globe to unite, with the view of attaining national unity and homogeneousness. Spain, Belgium, France, and several other European countries were formerly peopled by different races, who constituted so many different communities; but they became united, they entered into confederations, and in the course of ages all the communities were consolidated into those which we now see—into everything that is held to be beautiful, noble and great throughout the whole world. When the Federal system has been put in practice in an enlightened manner, it has always sufficed for the requirements of those who adopted it.

Without uniformity, without unity, it is impossible to make any serious attempt at defence in case of attack, and the divided country falls an easy prey to the enemy.

These powers of the Federal Government are not, as we understand the matter, to be exercised, except as regards the following subjects, viz., Commerce, comprising purely commercial laws, such as laws respecting banks and other institutions of a general financial character, coinage, and weights and measures; Customs, including the establishment of a uniform tariff, and the collection of the revenue resulting therefrom; great Public Works and Navigation, such as canals, railways, telegraph lines, great seaport works and the lighting of the coast; Post Office arrangements, both in their entirety and in their internal and external details; the Militia in the entirety of its organization; Criminal justice, comprising all offences which do not come under the jurisdiction of the police courts and justices of the peace. Everything else connected with civil law, education, public charities, the settlement of public lands, agriculture, city and rural police, road works, in fact, with all matters relating to the family life, so to speak, of each province, will remain under the exclusive control of the respective Local Government of each one of them, as by inherent right; the powers of the Federal Government being looked upon as merely a concession of rights, which are specially designated.

What hopes may we not be allowed to indulge respecting the material future of the immense country which includes the two Canadas, New Brunswick, Nova Scotia, Newfoundland, Prince Edward Island, the Hudson’s Bay Territory and Vancouver’s Island, when we reflect on the wealth of a soil which is almost everywhere remarkably fertile, (except the extreme North,) on the resources which the forests have treasured up for the settler in the lapse of ages, on the immense fisheries in the Gulf, sufficient of themselves to feed the whole world with fish of the finest quality; when we consider that the whole of this vast continent offers to us, in its various geological formations mineral wealth of the most precious kinds, and that nature has arranged for us channels of intercommunication of incredible grandeur. The fertile soil of these provinces intersected throughout their entire length by the rivers St. Lawrence and St. John, bathed by the waters of the Gulf and those of the Great Lakes, the superb forests through which flow the immense Ottawa, the St. Maurice and the Saguenay, the mines of copper bordering on lakes Superior and Huron, the iron mines of Canada, the coal measures of Nova Scotia and New Brunswick, the seaports of Quebec, Halifax and St. John, the ores of all kinds dispersed throughout the provinces—all those form an aggregate of means which, if we suppose them to be turned to account by a competent population, governed by a political system based on true principles of order and liberty, justifies the most extravagant calculations of profit, the most extraordinary predictions of growth, as compared with the present state of things.

At most, the resolutions are not a treaty, but the mere draft of an agreement come to between those gentlemen. HON. ATTY. GEN. CARTIER—Oh, yes, it is a treaty, and we are now fighting to uphold it. MR. DUNKIN—Well, it is a draft of a treaty if you like, but it is not a treaty. Plenipotentiaries, who frame treaties, have full authority to act on behalf of their respective countries. HON. ATTY. GEN. CARTIER—It is the same as any other treaty entered into under the British system. The Government is responsible for it to Parliament, and if this does not meet your approval, you can dispossess us by a vote of want of confidence.

Her Majesty says in her Speech from the Throne at the opening of the Imperial Parliament, that she approves of the Conference that framed the treaty. Is not the royal sanction sufficient authority?

We are asking for that authority now

Well, a treaty, I suppose, implies authority on the part of those who framed it to enter into it.

MR. DUNKIN—I think we shall, if we maintain and strengthen our relations with the parent state; but I do not think we shall, if we adopt a scheme like this, which must certainly weaken the tie between us and the Empire. Our language to England had better be the plain truth—that we are no beggars, and will shirk no duty; that we do not want to go, and of ourselves will not go; that our feelings and our interests alike hold us to her; that, even apart from feeling, we are not strong enough, and know our own weakness, and the strength of the power near us; and that the only means by which we can possibly be kept from absorption by that power, is the maintaining now—and for all time that we can look forward to—of our connection with the Mother-Land.

Now, I am not desirous that our acceptance of the scheme should go home to be cited (as it would be) to the people of England, as a proof that we so view it—a proof that we wish to be separated from the Empire. I am quite satisfied separation will never do. We are simply sure to be overwhelmed the instant our neighbors and we differ, unless we have the whole power of the Mother Country to assist us.

The people of England have no desire to snap asunder abruptly the slender links which still unite them with their trans-atlantic fellow-subjects, or to shorten by a single hour the duration of their common citizenship. * * * * We are led irresistibly to the inference that this stage has been well nigh reached in the history of our trans-Atlantic provinces. Hence it comes to pass that we accept, not with fear and trembling, but with unmixed joy and satisfaction, a voluntary proclamation, which, though couched in the accents of loyalty, and proffering an enduring allegiance to our Queen, falls yet more welcome on our eats as the harbinger of the future and complete independence of British North America.

If, as has been alleged, a legislative union is unattainable, because inconsistent with due securities for the rights guaranteed to the French Canadians, by treaty or by the Quebec Act, and Federation is therefore the only alternative, the vital question for the framers of this Constitution is how the inherent weakness of all federations can in this instance be cured, and the Central Government armed with a sovereignty which may be worthy of the name. It is the essence of all good governments to have somewhere a true sovereign power. A sovereignty which ever eludes your grasp, which has no local habitation, provincial or imperial, is in fact no government at all. Sooner or later the shadow of authority which is reflected from an unsubstantial political idea must cease to have power among men. It has been assumed by those who take a sanguine view of this political experiment, that its authors have steered clear of the rock on which the WASHINGTON Confederacy has split. But if the weakness of the Central Government is the rock alluded to, we fear that unless in clear water and smooth seas, the pilot who is to steer this new craft will need a more perfect chart than the resolutions of the Quebec Conference afford, to secure him against the risks of navigation.

What we have to fear, and if possible to guard against, is the constant peril of a three-fold conflict of authority implied in the very existence of a federation of dependencies retaining, as now proposed, any considerable share of intercolonial independence.

We are to buy the Hudson’s Bay territory, and take care of it, and make a grand road all across the continent, which Great Britain shrinks from contemplating herself.

The completion of the Intercolonial Railway, and the probable annexation of the fertile portions of the Great North-Western territory to the new Confederation, form a portion only of the probable consequences of its formation, the benefits of which will not be limited to the colonies alone, but in which Europe and the world at large will eventually participate. When the Valley of the Saskatchewan shall have been colonized, the communications between the Red River Settlement and Lake Superior completed, and the harbour of Halifax united by one continuous line of railway, with the shores of Lake Huron, the three missing links between the Atlantic and Pacific ocean will have been supplied.

The result of these proposals, if carried into effect, would be the creation of a new state in North America, still retaining the name of a British dependency, comprising an area about equal to that of Europe, a population of about four millions, with an aggregate revenue in sterling of about two millions and a half, and carrying on a trade (including exports, imports and intercolonial commerce) of about twenty-eight millions sterling per annum. If we consider the relative positions of Canada and the Maritime Provinces—the former possessing good harbors, but no back country, the former an unlimited supply of cereals, but few minerals; the latter an unlimited supply of iron and coal, but little agricultural produce. The commercial advantages of union between states so circumstanced, are too obvious to need comment. The completion of the Intercolonial Railway, and the probable annexation of the fertile portions of the Northwest territory to the new Confederation, form a portion only of the probable consequences of its formation, but in which Europe and the world at large will eventually participate. When the—

A very important question, on which these papers afford no information, is that relating to the future condition of those territories and dependencies of the Crown in North America, which are not included within the present boundaries of the five provinces. “We allude more particularly to the territories now held by the Hudson’s Bay Company, under the Crown, by charter or lease. The Crown is doubtless bound to take care that the interest of its grantees—[it never seems to have occurred to our friend that we, too, are grantees]—are not prejudiced by these changes; but, on the other hand, an English trading company is ill qualified to carry on the government and provide for the defence of a vast and inaccessible expanse of continental territory.

It is scarcely surprising that any project which may offer a prospect of escape from a political situation so undignified and unsatisfactory should be hailed with a cordial welcome by all parties concerned. But one meaning can be put upon all this. In the opinion of the writer, England does not believe that these provinces are worth anything to her, while the connection with the Mother Country is worth all to us ; and she would hail with satisfaction any way of escape from the obligations and dangers that we are said to cast upon her.

Retainers who will neither give nor accept notice to quit our service, must, it is assumed, be kept for our service. There are, nevertheless, special and exceptional difficulties which beset us in this portion of our vast field of empire.

It might puzzle the wisest of our statesmen, if he were challenged to put his finger on any single item of material advantage resulting to ourselves from our dominions in British North America, which cost us at this moment about a million sterling a year.

It is not unnatural that the desire to maintain a connection with the power and wealth of the Mother Country should be stronger on the side of the colonies than it is on that of the British public, for they owe almost everything to us, and we receive but little from them. Moreover, the existing system of colonial government enables them to combine all the advantages of local independence with the strength and dignity of a great empire. But the Imperial Government in the meantime has to decide, not as of old, whether Great Britain is to tax the colonies, but to what extent the colonies are to be permitted to tax Great Britain—a question which is daily becoming more urgent and less easy of solution.

There are problems of colonial policy the solution of which cannot, without peril, be indefinitely delayed; and though Imperial England is doing her best to keep up appearances in the management of her five and forty dependencies, the political links which once bound them to each other and to their common centre are evidently worn out. Misgivings haunt the public mind as to the stability of an edifice which seems to be founded on a reciprocity of deception, and only to be shored up for the time by obsolete and meaningless traditions.

I am well enough satisfied that Lord DERBY himself has not the most remote idea of falling in with the views of the so-called colonial reformers in England, who desire to see the colonies pay for every thing or be cast off; but he knows the hold that their views have gained at home, and he speaks accordingly.

Under these circumstances I see with additional satisfaction—[Meaning of, course, though courtesy may have disallowed the phrase, “less dissatisfaction,” for he certainly did not see those other matters with any satisfaction at all]—I see with additional satisfaction the announcement of a contemplated important step. I mean the proposed Federation of the British American Provinces. (Hear, hear.) I hope I may regard that Federation as a measure tending to constitute a power strong enough, with the aid of this country, which I trust may never be withdrawn from those provinces, to acquire an importance which, separately, they could not obtain. (Hear, hear.) If I saw in this Federation a desire to separate from this country, I should think it a matter of much more doubtful policy and advantage; but I perceive with satisfaction, that no such wish is entertained. Perhaps it is premature to discuss, at present, resolutions not yet submitted to the different provincial legislatures, but I hope I see in the terms of that Federation an earnest desire on the part of the provinces to maintain for themselves the blessing of the connection with this country, and a determined and deliberate preference for monarchical over republican institutions.

“We are supposed, by one of these noble lords, to bo taking a step analogous to that taken by the authors of the Declaration of Independence ; and by the other, to be moved by the same impulse of empire that has been leading to the establishment of the Kingdom of Italy.

the northern provinces of British America. I heartily concur in all—[the all being as we have just seen, not much]—that has been said by my noble friend the mover of this address in his laudation of that project. It is, my lords, a most interesting contemplation that that project has arisen, and has been approved by Her Majesty’s Government. It is certainly contrary to what might be considered the old maxims of government in connection with the colonies, that we should here express —and that the Crown itself should express— satisfaction at a measure which tends to bind together, in almost independent power, our colonies in North America. We do still believe that though thus banded together, they will recognize the value of British connection, and that while they will be safer in this amalgamation, we shall be as safe in their fealty. The measure will no doubt, my lords, require much prudent consideration and great attention to provincial susceptibilities.

Why should these resolutions suggest to any one’s mind the declaration of independence? Did the gentlemen who signed these resolutions in order to authenticate them—pledge their lives and fortunes, and I don’t know what besides, to anything, or risk anything, by appending their signatures to the document? Was it a great exercise of political heroism? Why, the men who signed the declaration of independence qualified themselves in the eyes of the Imperial Government for the pleasant operations of heading and hanging. They knew what they were about. They were issuing a rebel declaration of war. But this is a piece of machinery, on the face of it at least, to perpetuate our connection with the Mother Country! Why then does it suggest the idea that so great a scheme of self-government, or one shadowing forth so many similar and possible changes, ” hardly ever before occurred?” It is because there is, underlying the speaker’s thought, just that idea of the anti-colonial school in England, that we are going to slip away from our connection with the Mother Country; and in this respect, therefore, it seems to him that it is like the declaration of independence. The remaining sentence indicates a curious misapprehension as to the present posture of this question. ” If the delegates of these several colonies finally agree to the resolutions framed by their committee, and if these resolutions be approved by the several legislatures of the several colonies, Parliament will be asked to consider and complete this federation of our Northern American possessions.” The noble lord, the mover of the Address, seems to take the resolutions for a mere report of a committee which (on their way here) had yet to be submitted to the consideration of the delegates ! Next, I turn to the language of Lord HOUGHTON, the seconder of the Address ; and from his lips too, we have an almost distinct utterance of the idea of our coming independence. He says :—

If it is a declaration that this thing is a treaty, which may not be amended by us without flying in the face of Her Majesty’s Government, I do not understand the meaning of words. (Hear, hear.) In connection with the Speech from the Throne, we had, the other night, some notice taken, on the floor of this House, of language used in discussing the address in the Imperial Parliament. Lords CLAREMONT, HOUGHTON, GRANVILLE and DERBY had something to say in respect of this scheme in the House of Lords ; as also, Mr. HANBURY TRACY in the House of Commons. I do not attach great weight to what was there said, because there really was little said any way, and that little could not indicate any great amount of knowledge upon the subject treated. However, I will quote first what the mover of the address, the Earl of CLAREMONT, said. After referring to the war in New Zealand, he went on :— My Lords, although these operations in India, New Zealand, and Japan, are matters of more or less interest or concern to the nation, and, as such, are fully deserving of notice, yet they are small in comparison to the importance of the probable change in the constitution of our North American Colonies. Since the declaration of independence by the colonies, since known as the United States of America, so great a scheme of self-government, or one shadowing forth so many similar and possible changes, has not occurred.

These delegates adopted resolutions having for their object a closer union of those provinces under a central government. If those resolutions shall be approved by the provincial legislatures, a bill will be laid before you for carrying this important measure into effect”

The language addressed from the Throne to the Imperial Parliament is this: ” Her Majesty has had great satisfaction in giving Her sanction—”to what?—” to the meeting of a conference of delegates from the several North American Provinces, who, on invitation from Her Majesty’s Governor General, assembled at Quebec.”

It is true we are not actually giving up the American colonies,—nay, the despatch we are quoting does not contain the slightest hint that such a possibility ever crossed the mind of the writer; but yet it is perfectly evident—and there is no use in concealing the fact—that the Confederation movement considerably diminishes the difficulty which would be felt by the colonies in separating from the Mother Country. Even now the North American Confederation represents a state formidable from the numbers of its hardy and energetic population, and capable, if so united, of vigorously defending the territories it possesses. A few years will add greatly to that population, and place Canada, Hochelaga, Acadia, or by whatever other name the Confederacy may think fit to call itself, quite out of the reach of invasion or conquest. Such a state would not only be strong against the Mother Country under the impossible supposition of our seeking to coerce it by force, but it might be separated from us without incurring the disgrace of leaving a small and helpless community at the mercy of powerful and warlike neighbors.

“The second point which Her Majesty’s Government desire should be reconsidered”—and this phrase is positively, so far as words can give it, a command on the part of Her Majesty’s Government that it shall be reconsidered :— The second point which Her Majesty’s Government desire should be reconsidered is the constitution of the Legislative Council. They appreciate the considerations which have influenced the Conference in determining the mode in which this body, so important to the constitution of the Legislature, should be composed. But it appears to them to require further consideration whether, if the members be appointed “for life, and their number be fixed, there will be any sufficient means of restoring harmony between the Legislative Council and the popular Assembly, if it shall ever unfortunately happen that a decided difference of opinion shall arise between them. These two points, relating to the prerogative of the Crown and the Constitution of the Upper Chamber have appeared to require distinct and separate notice. Is not that a pretty emphatic dissent ?

Her Majesty’s Government cannot but express the earnest hope, that the arrangements which may be adopted in this respect may not be of such a nature as to increase—at least in any considerable degree—the whole expenditure, or to make any material addition to the taxation, and thereby retard the internal industry, or tend to impose new burdens on the commerce of the country.

First, an objection is raised as to the want of accurate determination of the limits between the authority of the Central and that of the local legislatures.

we are trying to strengthen our union with the Mother Country—that we care far less about a mere union with neighboring provinces, which will frighten no one in the least, but that we arc determined to maintain at all hazards and draw closer, that connection with the Mother Country which alone, so long as it lasts, can and will protect us from all serious aggression. (Hear, hear.) But we are told that, on account of a variety of considerations connected with the state of opinion at home, and out of deference to that opinion, we must positively carry out this scheme.

If, now, a different idea is to prevail—if the notion is to go abroad that we are, by creating ourselves into a new nationality, to be somewhat less connected with the Empire than these provinces heretofore have been, then I do apprehend that a very different future is before us, and that in all sorts of ways, by vexations of all kinds, by the fomenting of every trouble within our own borders, whether originating from abroad, or only reacted on from abroad, we shall be exposed to dangers of the most serious kind.

In and before 1840, after the troubles which had been distracting Canada were put down, it was declared, and perfectly well understood, that the Imperial Government was simply determined to hold on to the connection with this country.

It is quite right that the General Government should have such powers; but the very fact of our having to make a reservation of this kind, is an unpleasant recognition of the fact, in itself the reverse of encouraging, of the all darkening neighborhood of the United States.

We are here proposing to create in this part of the Queen’s dominions a mere sub-federation, so to speak, tending, so far as it tends to anything, towards the exclusion of this kind of provision.

if our connection with the Empire is to last, we must have—this department of our public affairs attended to by a regularly appointed Minister of the Crown here, who, whenever occasion requires, may explain them and who shall be responsible to this House. Of course, nobody denies that the Governor General is the channel of communication between us and the Imperial Government. He is the Queen’s representative and servant, and his communications with the Home Government must be of the most confidential character, except in so far as he may see fit to make them known. But fully admitting this, still besides those communications of this character which he may, have and indeed at all times must have unrestrictedly with the Imperial Government, there should be—and, if our Imperial relations are to be maintained, there must be—a further class of communications between the two governments, as to which the Governor should be advised by a minister whose particular duty it should be to manage affairs between the Mother Country and ourselves, and to be in effect a local adviser, as to such matters, of the Imperial advisers of the Crown in England.

dency. (Hear, hear.) All the great provinces are flying off too much, attending too exclusively to mere local considerations, too little to those of the general or Imperial kind. And at home, as we seem to be flying off, they, too, are thinking of us and of the interests they and we have in common less and less. What is wanting, if one is to look to the interest of the Empire, which is really that of all its parts—what is wanting, as I have said, is an effective federalization of the Empire as a whole, not a subordinate federation here or there, made up out of parts of it. I have neither time nor strength to-night to go fairly into the question of how this thing should be done; but a few words more as to that, I must be pardoned for.

Your Federal Government will occupy about as anomalous a position between the Imperial and provincial governments as I showed, last night, will be occupied by your lieutenant governors between the Federal authority and the provinces. Both will be out of place, and to find themselves in work they must give trouble. I do not see how they can do good, but I do see how they can do any quantity of harm. (Hear, hear.) The real difficulty in our position is one that is not met by the machinery here proposed. What is that difficulty? In the larger provinces of the empire we have the system of responsible government thoroughly accorded by the Imperial Government, and thoroughly worked out; and the difficulty of the system that is now pressing, or ought to be, upon the attention of our statesmen is just this—that the tie connecting us with the Empire, and which ought to be a federal tie of the strongest kind, is too slight, is not, properly speaking, so much as a federal tie at all. These provinces, with local responsible government, are too nearly in the position of independent communities; there is not enough of connection between them and the parent state to make the relations between the two work well, or give promise of lasting long. There is in the machinery too much of what may be called the centrifugal ten-

when we propose to create a Federal Government between the Imperial and Provincial, we are equally proposing to create a something which, having nothing of its own to do, must find work by encroaching on the functions of the Imperial and provincial governments in turn, with no place among nations, no relations with other countries, no foreign policy; it will stand in just the same position towards the Imperial Government as Ganada now stands in, or as Upper or Lower Canada before the union used to occupy. That intermediate work of government which is now done by the Province of Canada, the Province of New Brunswick, the Province of Nova Scotia, the Province of Prince Edward Island and the Province of Newfoundland, is to be done, part by the Federal Government and part by the provinces. The work is simply divided that is now done by the provincial legislatures and governments, and in my opinion there is no use in this subdivision of work at all. You are putting this fifth wheel to the coach, merely to find out that a misfitting odd wheel will not serve any useful purpose, nor so much as work smoothly with the other four.

The Imperial Government will be the head of the Empire as much as ever, and will alone have to attend to all foreign relations and national matters ; while we shall be nothing more than we are now. Half-a-dozen colonies federated are but a federated colony after all. Instead of being so many separate provinces with workable institutions, we are to be one province most cumbrously organised—nothing more.

Unlike the people of the United States, we are to have no foreign relations to look after, or national affairs of any kind; and therefore our new nationality, if we could create it, could be nothing but a name. I must say that according to my view of the change we ought to aim at, any idea of Federation that we may entertain had need take an Imperial direction. Whenever changing our institutions, we had need develop and strengthen—not merely maintain, but maintain, develop and strengthen—the tie, not yet Federal as it ought to be, between us and the parent state.

I am free to admit that a reduction of the tariff on certain articles, or even some measure of reduction all round, might be no material loss, or might even be a gain, to the revenue— in ordinary or prosperous times, that is to say. But when the object of reducing the tariff is to meet other exigencies than those of revenue, one can hardly hope to get such a tariff as shall give us the largest revenue attainable. And besides, no one can deny that we are about entering upon a time, commercially speaking, that may be termed hard.

We are marching fast and steadily towards free trade. We must meet the views of the people of the Lower Provinces, who are hostile to high tariffs, and the demand of the Imperial authorities that we should not tax their manufactures so heavily as—in their phrase—almost to deprive them of our market. It was distinctly and officially stated the other day, in Newfoundland, that assurance had been given to the Government of Newfoundland that the views of the Canadian Government are unmistakably in this direction. And I do not think there is any mistake about that, either. To show how people at home, too, expect our tariff to come down, I may refer to the speech of Mr. HAMBURY TRACY, in seconding the Address in answer to the Speech from the Throne, in the House of Commons the other day. He could not stop, after saying generally that he was pleased with this Confederation movement, without adding that he trusted it would result in a very considerable decrease in the absurdly high and hostile tariff at present prevailing in Canada.

The same sort of thing may be looked for in reference to the New Brunswick timber export duty and the Nova Scotia mineral export duty. Here is one form of the cry that may be raised; ” You give these exceptional privileges to New Brunswick and Nova Scotia; give them, or some equivalent, to us also.”

accustom the people to direct taxation

Men who for years past have devoted their pen to the unhallowed work of undermining the Catholic religion and vilifying its ministers, who have long aimed at destroying in the minds of French-Canadians all love for their peculiar institutions—the safeguards of our nationality

any injustice to Upper Canada could arise. And then my honorable friend will see how it is to be distributed afterwards in the way of population, so that although there might be a little loss in the first instance, there would be an immense gain in the end.

We find a section of the people in Lower Canada opposing the work on the ground that it will tend to destroy their language and nationality ; and we find also the British element in Lower Canada complain that in the arrangement for the Local Legislature their rights and privileges will be swept away. (Hear, hear.) On the other hand, Upper Canadians are opposing the scheme as injurious to their true interests, and asserting that the financial difficulties likely to arise under it will be detrimental to the welfare of the west ; so that where there is such great diversity of opinion, it was impossible to mature a scheme which should be in all respects perfect and satisfactory. No doubt Upper Canada has some cause to complain. For instance, the eighty cents per head for carrying on the local governments appears unfair in principle to Upper Canada, and as such they have reason to feel dissatisfied. This apportionment is on the present basis of population, and whatever may be the increase in numbers of the western section of the province, if even we increase during the next ten years in the same ratio that we have been increasing for the past ten years ; if we double our population we shall still only get the eighty cents per head for the present population. There is no doubt this is an objectionable feature. HON. MR. BROWN—Will my honorable friend allow me to assure him that he is slightly in error, and to show him how he is so ? Supposing we increase in population, the other provinces will increase also, and the only unfairness that could possibly exist in the case supposed would be in so far as the population of Upper Canada was relatively greater than that of the other provinces. HON. MR. HOLTON—It is a matter of ratio. HON. MR. BROWN—Yes, it is simply a question of ratio. My honorable friend will see how the principle works. At the rate we are proceeding now, some 2 1/2, 3, or 4 per cent., it would take a great many years before

But I have failed to see, and I yet fail to see, that the Liberal party of Upper Canada have ever given up the advocacy of representation by population. We found all parties in Lower Canada—both the English-speaking population and French-speaking population —refusing to concede to us what we conceived to be this just and proper principle; and when the opportunity was offered to us of relieving the country from its difficulties, we felt that no party considerations or party ties should be allowed to interfere with what we conceived to be our sacred duty to our constituents and our country.

As a commercial work, I have looked into it in all its bearings, and have failed to see the advantages it will confer. The farmers of the grain-producing districts of Upper Canada have the same market to sell their surplus products as the farmers of the States, that is, the English market. Now, I think it is impossible to show that the produce of Upper Canada can be conveyed by this Intercolonial Railway to the seaboard, and thence to Liverpool, as profitably as the Americans can carry it to the seaboard at New York and thence to the English market. If by the one route the grain cannot be carried as cheaply as by the other, it is impossible for the Canadian farmer or merchant to be placed in as good a position as the American. But if, having constructed the Intercolonial Railway, our Government says, ” We will compete with the Americans ; we will put the rates of transportation so low as to offer our farmers as cheap a route by it as by the States,” then the cost of this will have to be borne by the people in another way, for the road failing to pay even expenses, the excess of expenditure will become a charge upon the country for years.

Now, sir, I believe that in a commercial, agricultural, and defensive point of view, the union would be desirable. Placed as we are now, with the abrogation of the Reciprocity treaty threatened, does it not become our duty, I ask, to make some effort to change and improve our condition ? As I stated, sir, the subject has been so ably placed before this House by honorable gentlemen who have preceded me, and who are so much more capable of dealing with it than I am, that I will not attempt to repeat the arguments in favor of this scheme, commercially, financially, and politically, which have already been adduced. But there are one or two points as to the resources of the whole of British North America, to which I would for a moment invite the attention of the House. The union is desirable with a view to the development of our mineral resources. In British Columbia and Vancouver’s Island the gold fields equal, if they do not exceed in value, those of any other part of the world. Iron we have in that vast extent of country lying between the Rocky Mountains and Lake Superior, a country equal if not superior, for the purposes of settlement and cultivation to any we have in Canada, and whose area is estimated at from eighty to one hundred million acres. Then, again, we have magnificent iron and copper mines in Canada, while the Lower Provinces possess vast mineral resources, extensive coal fields, and valuable fisheries.

33rd sub-section gives to the General Gov.- ornament the power of ” rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these provinces ; but any statute for this purpose shall have no force or authority in any province until sanctioned by the legislature thereof.” So that in reality no such law will be binding until it has the sanction of the Local Legislature of the province particularly affected thereby. Such being the guarded terms of the resolution, why is it not made applicable to Lower Canada as well as to the other provinces ? Nothing could be done respecting its peculiar laws without the consent of its Local Legislature, and it is quite possible to my mind, that there are some laws which it would be advantageous to all parts of the Confederation to assimilate. But they emphatically declare in these redo- lotions that there shall be no interference with the laws of Lower Canada. So that while it is proposed to assimilate the laws of the other provinces, there is a large section of intervening country which is to have, for all time to come, laws separate and distinct from the rest.

Well, provision has been made for the consolidation of these laws; but observe how religiously the laws of Lower Canada are guarded from interference. The

” The Local Government and Legislature of each province shall be constructed in such manner as the existing legislature of each such province shall provide.” I do not understand from this whether it is competent or not for us in this Legislature, before there is a Federal union, to make provision for the Local Government and Legislature, or whether we are to await the action upon the subject of Federation of the Imperial Government. Our action, one should suppose, ought to be taken after the Imperial Government has pronounced. Perhaps this is the intention. Mr. SPEAKER, they refuse to tell us anything about it. It may be that, as soon as these resolutions are carried, we will be sent about our business ; that the Imperial Legislature will be invited to pass an act, and that they will convene us again, provision being made for that course, and so in point of fact, having once affirmed the principle of Federation, we will have to accept such local legislatures as they choose to give us.

they have declined to allow us to understand what sort of a local legislature we are to have They will not tell us how our Executive is to be formed. They will not tell us whether we are to have legislative councils in Upper and Lower Canada, and whether or not they will be elected councils. They will not tell us what number of members will constitute the Executive Council of the Confederation, nor what influence each individual province will have in that government. They will not bring down the scheme for the local legislatures. They tell us that it is better to withhold those details—that we are dealing with Federation alone, and have no business discussing local governments What is the object of all this vagueness ?

however, have said that they were in favor of direct taxation for the support of the local governments, because it would lead those who have to pay the taxes to look more closely into what was going on, and the manner in which their money was expended. (Hear, hear.) There seems also to have been a feeling in the Lower Provinces in favor of a legislative union, and the Hon. Mr. GREY seems to be combatting that idea. He says that with a legislative union, municipal institutions, and direct taxation in every province, would be the only means of getting along. He expressed himself as opposed to that and in favor of a Federal union, which he thought would afford them all the advantage that could be attained, commercially, by union, and would allow each province to retain control over its own local affairs. The local legislatures, he said, were to be deprived of no power over their own affairs that they formerly possessed. But in Canada it was represented that the local legislatures were to be only the shadow of the General Legislature—that they were to have merely a shadow of power, as all their proceedings were to be controlled by the Federal Government. That is the position taken by the advocates of the measure on this floor. So it seems that those gentlemen who have represented to us that they acted in great harmony, and came to a common decision when they were in conference, take a widely different view of the questions supposed to have been agreed upon, and give very different accounts of what were the views of parties to the conference on the various subjects. (Hear, hear.) In the Lower Provinces they were strongly opposed to direct taxation, while here it was present end as one of the advantages to accrue from the Federation. (Cries of No, no.) Well, Mr. SPEAKER, I say yes. That view of the case has been taken. If the amount allowed for the expenses of local legislation—the 80 cents per head—was found insufficient, the local parliaments must resort to direct taxation to make up the deficiency, while in tile Lower Provinces, it seems, nothing of that kind was to follow.

The Federal character of the United States Government has been referred to prove that it has increased the prosperity of the people living under it; but in point of fact the great and relentless war that is now raging there—that fratricidal war in which brother is arrayed against brother, filled with hatred toward each other, and which has plunged the country into all the horrors of the deadliest strife—is the strongest comment upon the working of the Federal principle—the strongest argument against its application to these provinces. (Hear, hear.) The French element in Lower Canada will be separated from us in its Local Legislature and become less united with us than it is now ; and therefore there is likely to be disagreement between us. Still more likely is there to be disagreement when the people of Upper Canada find that this scheme will not relieve them of the burdens cast upon them, but, on the contrary, will subject them to a legislature that will have the power of imposing direct taxation in addition to the burdens imposed by the General Government. When they find that this power is exercised, and they are called upon to contribute as much as before to the General Government, while taxed to maintain a separate Local Legislature—when they find that the material question is to weigh with them, they will look to the other side of the line for union. I feel that we are going to do that which will weaken our connection with the Mother Country, because if you give power to legislate upon the same subjects to both the local and the federal legislatures, and allow both to impose taxation upon the people, disagreements will spring up which must necessarily have that effect. (Hear, hear.) Then again, by this scheme that is laid before us, certain things are to be legislated upon by both the general and the local legislatures, and yet the local legislation is to be subordinate to the legislation of the Federal Parliament. For instance, emigration and agriculture are to be subject to the control of both bodies. Now suppose that the Federal Legislature chooses to decide in favor of having emigration flow to a particular locality, so as to benefit one province alone—I do not menu this expression to be understood in its entire sense, because I think that emigration in any one portion will benefit the whole, but it will benefit the particular locality much more at the time—and if provision is made by the General Legislature for emigration of that kind, and grants are made from the public funds to carry it out, it will cause much complaint, as the people who are paying the greatest proportion of the revenue will be subject to the drafts upon them as before.

He says :—” It is not a question of interest, or mere commercial advantage ; no, it is an effort to establish a new empire in British North America.”

HON. ATTY. GEN. CARTIER—Allow me to make a remark. A little while ago the honorable gentleman quoted from a speech of Hon. Mr. TILLEY, in which that gentleman supposed the case, that on some evil day Upper Canada, actuated by selfish motives, would endeavor to obtain the passing of some measure that would be conducive to her exclusive aggrandizement. ” In that event,” said Hon. Mr. TILLEY, addressing himself to his people below, with the view of meeting that hypothetical case, “you will have the sixty-five members from Lower Canada and the forty-seven from below, to unite in resisting any attempt of the kind.” On that account the honorable member for North Ontario has stated that he is opposed to this scheme of Federation. He prefers a legislative union ; but of course with a legislative union there would be the same ratio of representation, and his opposition, on this particular ground, ought to apply to the one system as much as to the other.

Hon. Mr. TILLEY made this representation in a speech which he delivered on the 17th November last :— So close is the contest between parties in the Canadian Legislature, that even the five Prince Edward Island members by their vote could turn victory on whatever side they chose, and have the game entirely in their own hands. Suppose that Upper Canada should attempt to carry out schemes for her own aggrandizement in the west, could she, with her eighty-two representatives, successfully oppose the sixty-five of Lower Canada and the forty-seven of the Lower Provinces, whose interests would be identical ? Certainly not ; and she would not attempt it. MR. H. MACKENZIE—What has that to do with representation by population ? MR. M. C. CAMERON—” What has that to do with representation by population ?” asks the hon. gentleman. Representation by population was agitated, so far as Upper Canada is concerned, because we are paying so large a proportion of the revenue of the country ; and should the Lower Provinces have a corresponding voice, we should still pay the same proportion of revenue—instead, in fact, of standing on an equality, we would have thirty voices more to contend against. (Hear, hear.) Now, let us see whether, in another point of view, it is going to benefit us. It is represented by this same gentleman in the Lower Provinces that, when this change takes place, they will be relieved from the burdens they now bear

it would be exceedingly inconvenient to manage the local affairs of so widely extended a country. I did not say that we could not exercise a general control over the country.

I believe that when these colonies are combined, acting in concert, and quickened and invigorated by a feeling of mutual dependence and interest, the tendency will be to increase their wealth and manufactures, and general strength. And, sir, I am satisfied one of the great advantages cf this union will be found in this that wk. will be raised above our sectionalisms, and come to feel and to act as the citizens of a great country, with destinies committed to us such as may well evoke the energies of a great people.

Ourselves from that protection we have so long enjoyed; but we desire, while remain- in under that protection, to do all that lies in our power for our self-defence, and for the development of all the great interests which Providence has committed to our trust; and we seek at the hands of the British Parliament such legislation as will enable us to accomplish these great ends for the whole of British America.

But, as I have stated, I think the Conference has been exceedingly happy in the plan they have submitted for our adoption A community of British free- men as we are, deliberately surveying our past as well as our present position, and look- in forward to our future, we in effect resolve that we will adhere to the protection of the British Crown; that we will tell the GOLDWIN SMITH school–these who are crying out for cutting off the colonies—that we will cling to the old Mother Land –(hear, hear)–we desire to maintain our connection; we have no desire to withdraw

The first steps towards a Federation of the American Colonies would thus bus to form them all into one state, to give that state a completely organized government, and then to delegate to each of the colonies out of which that great state is formed, such powers of local government as may be thought necessary, reserving to the Central Government all such powers as are not expressly delegated. The Government of New Zealand forms a precedent well worthy the attention of those who are undertaking this arduous negotiation. And I cannot doubt that the framers of this Constitution have studied the precedent as well of the proposed Constitution of Australia, as that of the Constitution of New Zealand, which has been in use for ten years past.

The great weakness of the American system has lain in the fact that the several states, on entering the union, claimed independent jurisdiction ; that they demitted to the Central Government certain powers, and that they claimed equal and sovereign powers with regard to everything not so delegated and demitted. The weaknesses aid difficulties of that system have been avoided in the project now before us, and we have the central power with defined and sovereign powers, and the local parliaments with their defined and delegated powers, but subordinated to the central power. The article says: — It is quite clear that the Federal Constitution of the United States of America forms a precedent which cannot possibly be followed in its principles or details by the united colonies, so long as they remain part of the dominions of the Imperial Crown. The principle of the American Federation is, that each is a sovereign state, which consents to delegate to a central authority a portion of its sovereign power, leaving the remainder, which is not so delegated, absolute and intact in its own hands. This is not the position of the colonies, each of which, instead of being an isolated sovereign state, is an integral part of the British Empire. They cannot delegate their sovereign authority to a central government, because them do not possess the sovereign authority to delegate. The only alternative as it seems to us would be to adopt a course exactly the contrary of that which the United States adopted, and instead of taking for their motto E Pluribus Unum, to invert it by saying In Uno Plural.

That the separate states be not so powerful as to be able to rely for protection against foreign encroachment on their individual strength. That is a condition which applies most forcibly in our case. (Hear, hear.) The third condition is :— That there be not a very marked inequality of strength among the several contracting states.

that prestige and power which go with every British subject to every civilized part of the globe, enabling him to say, like the old Roman, ” I am a British citizen.” EARL GREY states that :— The possession of a number of steady and faithful allies, in various quarters of the globe, will surely be admitted to add greatly to the strength of any nation ; while no alliance between independent states can be so close and intimate as the connection which unites the colonies to the United Kingdom as parts of the Great British Empire. Nor ought it to be forgotten, that the power of a nation does not depend merely on the amount of physical force it can command, but rests, in no small degree, upon opinion and moral influence. In this respect British power would be diminished by the loss of our colonies, to a degree which it would be difficult to estimate. Passing on a little, we find him saying :— To the latter [i. e. the colonists] it is no doubt of far greater importance than to the former, because, while still forming comparatively small and weak communities, they enjoy, in return for their allegiance to the British Crown, all the security and consideration which belongs to them as members of one of the most powerful states in the world. No foreign power ventures to attack or interfere with the smallest of them, while every colonist carries with him to the remotest quarters of the globe which he may visit, in trading or other pursuits, that protection which the character of a British subject everywhere confers. (Hear, hear.) But to view the subject in another aspect. I believe it will be found that all the conditions are combined in the scheme now before us, that are considered necessary for the formation on a permanent basis of a Federative union. I hold in my hand a book of some note on Representative Government, by JOHN STUART MILL, and I find that he lays down three conditions as applicable to the union of independent states, and which, by parity of reasoning, are applicable to provinces which seek to have a closer alliance with each other, and also, thereby, a closer alliance with the Mother Country. The conditions he lays down are first,— That there should be a sufficient amount of mutual sympathy among the populations. And he states that the sympathies which they should have in common should be— Those of race, language, religion, and, above all, of political institutions, as conducing most to a feeling of identity of political interest.

I proposed and drew up a plan for the union of all the colonies under one government, so far as might be necessary for defence and other important general purposes. By my plan, the General Government was to be administered by a President- General, appointed and supported by the Crown, and a General Council, to be chosen by the representatives of the people of the several colonies, met in the respective assemblies. The plan was agreed to in Congress, but the assemblies of the provinces did not adopt it, as they thought there was too much prerogative in it, and in England it was judged to have too much of the democratic. The different and contrary reasons of dislike to my plan made me suspect that it was really the true medium, and I am still of opinion it would have been happy for both sides if it had been adopted. The colonies so united would have been strong enough to have defended themselves; there would then have been no need of troops from England ; of course the subsequent pretext for taxing America, and also the bloody contest it occasioned, would have been avoided.

The New York Conner and Inquirer, in an article published at that time, came to the conclusion “that the union would, in fact, be an argument for a continuance of the existing relations between the two countries: is a matter of policy and gratitude, and that such a change of government could be met with no objection of any weight.”

But I will state why this union is c: inculcated to prolong our connection with Britain. I t is well known that there has been an entire and radical change of late in the colonial policy of England. That policy has been to extend to us the utmost liberty in our relations to the Empire. What is after all the nature of the bond, which links us to Great Britain, apart from our allegiance and loyalty? What is it but a Federative bond ? That is what links us to Britain,and I feel quite satisfied, in the words of an English publicist of some eminence, that ” the new colonial policy is calculated to prolong the connection of the colonies with the Mother Country.” I believe it will raise these provinces as part of the British Empire, and so secure to us the permanency of British institutions, and bind us more closely to the Crown.

I believe that the plan of union proposed will be found to meet the exigencies of our local position, give latitude to local development, and due protection to local interests, and yet secure that general control which is essentially necessary for the proper government of a country placed under the dominion of the British Crown.

It was pledged to introduce the Federative system into the Government of Canada, with special provisions for the incorporation into this Federation of the Maritime Provinces, and it was also pledged to send delegates to those provinces and invite them to join us in this Federation.

” I propose, in the course of the recess, to communicate with Her Majesty’s Government and with the government of the sister colonies, on another matter of very great importance. I am desirous of inviting them to discuss with us the principles on which a bond of a federal character uniting the provinces of British North America may, perhaps, hereafter be practicable.”

And when we look to the vast territory we have in the North-West; when we know that the great rivers which flow through that territory, flow through immense beds of coal, and that the whole country is rich in mineral deposits of all kinds—petroleum, copper, gold and iron; that the land is teeming with resources of wealth calculated to build up an extensive and valuable commerce, and support a powerful nation; that all this we can touch and seize upon the moment we are prepared to open up a way to reach them and allow the settler to enter ; when we remember this, I say, I think we can look forward with hope to a prodigious increase in our population and an immense development of strength and power.